Can a Delaware journalist get the date of death of a homicide victim from the medical examiner's office under FOIA?

Plain-English summary

Esteban Parra, a Delaware Online / News Journal reporter, was working a story on a Wilmington homicide. He needed the date of death of the victim. Wilmington Police told him to ask the Division of Forensic Science (DFS), the Delaware medical examiner. He filed a FOIA request with the Department of Safety and Homeland Security on August 30, 2022. DFS denied it the same day, citing the investigatory-files exemption at 29 Del. C. § 10002(o)(3).

Parra petitioned the AG. He argued that other Delaware law-enforcement agencies routinely release this kind of information; that the City had referred him to DFS, implying the City wanted the information released; and that the case was high-profile and of public interest.

The AG sided with DFS. The records that contain the date of death (the post-mortem report and the death certificate) are independently exempt:

• The post-mortem report is an "investigatory file compiled for civil or criminal law enforcement purposes" under § 10002(o)(3). Op. 05-IB16 and Lawson v. Meconi, 897 A.2d 740 (Del. 2006), confirm that post-mortem reports are themselves investigations and are essential to law-enforcement use.
• The death certificate is statutorily confidential under 16 Del. C. § 3110 and 16 Del. Admin. C. § 4205, which prohibit release of death certificates for forty years after the death except in narrow categories (next of kin with a documented legal need, etc.). § 10002(o)(6) imports that statutory confidentiality into FOIA's exemption framework.

The fact that other police agencies sometimes release date-of-death information from arrest data under 11 Del. C. § 8502(4)(b) does not bind DFS. Each agency has the records it has, and the exemption that applies to them. The AG also flagged that DFS waited until its petition response to invoke § 10002(o)(6) for the death certificate, raising the same concern as in Op. 22-IB16, 20-IB30, and 19-IB44 about agencies introducing new defenses on the AG petition rather than in the original denial.

What this means for you

If you are a journalist working a homicide story in Delaware

The opinion holds that the date and time of death the journalist sought were contained in two records, both exempt. The post-mortem report is an investigatory file under § 10002(o)(3); quoting Op. 05-IB16 and Lawson v. Meconi, the opinion describes such a report as "in itself, an investigation" whose confidentiality "is essential to its effective use in further investigation." The death certificate is statutorily protected under 16 Del. C. § 3110 and 16 Del. Admin. C. § 4205, which bar release for forty years except in limited cases, and the petitioner, as a journalist, did not allege a basis for any exception.

The opinion also holds that the journalist's other arguments (that other police agencies routinely release such information, and that the City's referral to DFS meant the City wanted it released) were "inapposite." A footnote notes that the arrest-data provision police agencies can use, 11 Del. C. § 8502(4)(b), "does not apply to DFS." The opinion does not address how a journalist might obtain the date of death by other means.

If you handle FOIA at the Division of Forensic Science or another medical examiner office

The opinion holds that the medical examiner properly denied the request: the post-mortem report is exempt as an investigatory file under § 10002(o)(3), and the death certificate is exempt under § 10002(o)(6) by way of the vital-records confidentiality statutes. It also contains a procedural caution: DFS "asserted Section 10002(o)(6) as a basis for denying access to the death certificate for the first time in its Response," and the AG "respectfully caution[ed] DFS to give due consideration to the reasons asserted in any future denials," citing the same caution in Op. 22-IB16, 20-IB30, and 19-IB44.

If you are a family member or someone with a legal claim seeking a death record

The opinion notes, without resolving any specific request, that 16 Del. Admin. C. § 4205 bars release of a death certificate for forty years "except in specific instances, such as request by the next of kin and a documented need to establish a legal right or claim." Because the journalist's petition did not allege a factual basis for any such exception, the opinion treats the death certificate as exempt on this record. It does not address how the post-mortem report would be obtained outside FOIA.

Common questions

Q: Are post-mortem reports public records in Delaware?
A: No. Op. 05-IB16 (citing the post-mortem's role in investigation) and Lawson v. Meconi, 897 A.2d 740 (Del. 2006), establish that post-mortem reports are exempt as investigatory files under § 10002(o)(3). They are themselves investigations, and confidentiality is part of their effective use.

Q: How long do Delaware death certificates stay confidential?
A: Forty years after the date of death under 16 Del. Admin. C. § 4205. There are narrow exceptions: requests by next of kin with documented legal need, certain government uses, etc.

Q: But Wilmington Police told me to ask DFS. Doesn't that authorize DFS to release?
A: No. A referral from one agency to another does not transfer release authority. Each agency operates under its own statutory framework. DFS's confidentiality obligations are not waived just because a police agency redirected the requester.

Q: I see other Delaware agencies release this information all the time. Why is DFS different?
A: Police agencies have specific authority under 11 Del. C. § 8502(4)(b) to release "arrest data that is reasonably contemporaneous to the event." That authority is tied to their arrest-record function. DFS is the medical examiner's office; its records (post-mortem report, death certificate) come under different statutory frameworks (FOIA investigatory exemption, vital records confidentiality). Different sources, different rules.

Q: What is § 10002(o)(6)?
A: It exempts records "specifically exempted from public disclosure by statute or common law." It is a catch-all that imports other statutes' confidentiality rules into FOIA. Death certificates fall under it because 16 Del. Admin. C. § 4205 prohibits release for 40 years.

Q: Is the AG criticizing DFS in this opinion?
A: Mildly, on procedure. DFS's substantive denial was correct (the records are exempt). But DFS only invoked § 10002(o)(6) in its petition response, not in the original denial letter. The AG noted this is a recurring issue, citing 22-IB16, 20-IB30, and 19-IB44, and asked DFS to give "due consideration to the reasons asserted in any future denials." The footnote signals that the AG is keeping track and that future violations on the same procedural issue may be treated more seriously.

Background and statutory framework

Delaware FOIA carves out several categories of records from public-records access. Two of them appear here:

• Section 10002(o)(3) exempts "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." Post-mortem reports fit squarely. Op. 05-IB16 and Lawson v. Meconi, 897 A.2d 740 (Del. 2006), are the leading authorities. Op. 15-IB13 reaffirmed this for date-of-death information specifically.
• Section 10002(o)(6) exempts "records specifically exempted from public disclosure by statute or common law." This brings in other statutes' confidentiality rules. For death certificates, the relevant statute is 16 Del. C. § 3110 and the implementing regulation at 16 Del. Admin. C. § 4205, which prohibits release for forty years.

The 11 Del. C. § 8502(4)(b) exception that police agencies use for arrest-data release does not apply to DFS. That provision authorizes release of "arrest data that is reasonably contemporaneous to the event for which an individual is currently involved in the criminal justice system." The opinion treats it as the arresting agency's authority, not the medical examiner's, which is why the fact that other agencies release such information was "inapposite" to DFS's denial.

On procedure, the opinion notes DFS raised the § 10002(o)(6) death-certificate ground "for the first time in its Response," and the AG "respectfully caution[ed]" DFS to consider its reasons in future denials, citing the same caution given in Op. 19-IB44, 20-IB30, and 22-IB16.

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions and FOIA exemptions)
• 29 Del. C. § 10003 (Reasonable access; denial reasons)
• 29 Del. C. § 10005 (Enforcement)
• 11 Del. C. § 8502 (Criminal justice information)
• 16 Del. C. § 3110 (Vital records confidentiality)
• 16 Del. Admin. C. § 4205 (Vital statistics, release of death certificates)

Cases:

• Lawson v. Meconi, 897 A.2d 740 (Del. 2006) (Delaware Supreme Court; investigatory information not public)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:

• Del. Op. Att'y Gen. 15-IB13 (Dec. 29, 2015) (date of death from post-mortem exempt)
• Del. Op. Att'y Gen. 05-IB16 (Jun. 22, 2005) (post-mortem reports as investigatory files)
• Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017) (FOIA does not require answering questions)
• Del. Op. Att'y Gen. 00-IB08 (May 24, 2000) (FOIA scope)
• Del. Op. Atty. Gen. 22-IB16 (Apr. 29, 2022); 20-IB30 (Dec. 7, 2020); 19-IB44 (Aug. 12, 2019) (caution against late-introduced defenses)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/09/30/22-ib36-09-30-2022-foia-opinion-letter-to-esteban-parra-re-foia-complaint-concerning-the-division-of-forensic-science-delaware-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/10/Attorney-General-Opinion-No.-22-IB36.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB36
September 30, 2022
VIA EMAIL
Esteban Parra
Delaware Online/The News Journal
[email protected]

RE:

FOIA Petition Regarding the Division of Forensic Science, Delaware
Department of Safety and Homeland Security

Dear Mr. Parra:
We write regarding your correspondence submitted alleging that the Division of Forensic
Science ("DFS") of the Delaware Department of Safety and Homeland Security ("DSHS")
violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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. For the reasons set forth
below, we find that DFS did not violate FOIA by denying access to the requested records, as the
records you seek are exempt from disclosure under FOIA.

BACKGROUND
On August 30, 2022, you submitted a request to DSHS seeking the date of death of a
deceased gunshot victim. Your request noted that while the homicide occurred in the City of
Wilmington's jurisdiction, the City staff referred you to DFS for the date and time of death. DSHS,
through DFS, denied your request later that day, asserting that the responsive records are exempt
from disclosure under 29 Del. C. § 10002(o)(3), which exempts investigatory files compiled for
civil or criminal law enforcement purposes. This Petition followed.

The Petition alleges that DFS improperly denied this request, because other law
enforcement agencies, like the Delaware State Police, routinely provide this information to the
public, and this case, which is under the City's jurisdiction to investigate, "is a high-profile
homicide and one of great interest to the public." 1 Furthermore, the Petition argues that the City's
referral of your request to DFS means that the City police wanted DFS to release this information.
DSHS, through its counsel, responded on September 12, 2022 to the Petition on behalf of
DFS ("Response"). DFS states that the information you seek is derived from the post-mortem
report and death certificate. DFS asserts that the post-mortem report is exempt from disclosure
under 29 Del. C. § 10002(o)(3) and the death certificate is statutorily protected from disclosure.
As you are a journalist, DSHS states that you do not qualify for one of the statutory exceptions to
release this information based on your relationship to the decedent. In addition, DFS argues that
the fact that other law enforcement agencies previously released information about a crime is not
determinative in this matter, because that statutory provision allowing law enforcement agencies
to release this information does not apply to DFS. In sum, DFS contends that there is no law
requiring disclosure of this information, and the denial of FOIA your request was proper.

DISCUSSION
The public body carries the burden of proof to justify its denial of access to records. 2 In
certain circumstances, a sworn affidavit may be required to meet that burden. 3 FOIA mandates
that a public body provide citizens with reasonable access to its public records for inspection and
copying. 4 However, "[i]nvestigatory files compiled for civil or criminal law-enforcement
purposes" and "records specifically exempted from public disclosure by statute or common law"
are exempt from the definition of "public record." 5 As a preliminary matter, the Petition's
arguments that other police agencies routinely release this information or that the City intended
for DFS to release this decedent's date of death are inapposite here. 6

1

Petition.

2

29 Del. C. § 10005(c).

3

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

4

29 Del. C. § 10003(a).

5

29 Del. C. § 10002(o)(6).

6

As DFS is the subject of this Petition and submitted this Response, we do not assess any
unrelated party's basis to potentially release the date of death. However, we note that DFS's
Response also points to an exception in the Delaware Code that permits the arresting law
enforcement agency to release "arrest data that is reasonably contemporaneous to the event for
which an individual is currently involved in the criminal justice system." 11 Del. C. § 8502(4)(b).
2

In this instance, you have asked DFS for the date of death of a decedent shot in Wilmington.
DFS maintains that its records containing that information are not public records under FOIA. 7
This post-mortem report, including the time of death, is exempt from disclosure under FOIA
pursuant to the investigatory file exemption. 8 Under 29 Del. C. § 10002(o)(6), FOIA also exempts
those records that are statutorily protected from disclosure. By statute, death certificates are not
subject to disclosure, with certain limited exceptions. 9 As the Petition does not allege a factual
basis for any of the exceptions, the death certificate responsive to this request is also exempt from
disclosure by statute. 10

7

FOIA is intended to provide access to public records. 29 Del. C. § 10001. A public body is
not required to answer questions set forth in a request. See, e.g., Del. Op. Att'y Gen. 17-IB05, 2017
WL 1317847, at 3 (Mar. 10, 2017); Del. Op. Att'y Gen. 00-IB08, 2000 WL 1092967, at 2 (May
24, 2000).
8

Del. Op. Att'y Gen. 15-IB13, 2015 WL 9701644, at 2 (Dec. 29, 2015); Del. Op. Att'y Gen.
05-IB16, 2005 WL 2334345, at 4 (Jun. 22, 2005)) ("Post-mortem reports 'are a compilation of
facts about the scene where the body was located and its condition' and are 'used to aid in the
determination of the cause of death,' and 'may become part of the files of the prosecutor and the
police.' . . . Such a report 'is, in itself, an investigation' and its confidentiality 'is essential to its
effective use in further investigation by law enforcement personnel.'") (internal citations omitted);
see also Lawson v. Meconi, 897 A.2d 740, 745 (Del. 2006) (citing Attorney General Opinion No.
05-IB16 with approval and stating that investigatory files are not public information and thus, "any
information gathered during the course of an investigation is not public information").
9

16 Del. C. § 3110 ("Disclosure of records); 16 Del. Admin. C. § 4205 (prohibiting release
of death certificates before forty years after the date of the death, except in specific instances, such
as request by the next of kin and a documented need to establish a legal right or claim).
10

We note that DFS asserted Section 10002(o)(6) as a basis for denying access to the death
certificate for the first time in its Response to your Petition, and we respectfully caution DFS to
give due consideration to the reasons asserted in any future denials of requests. See, e.g., Del. Op.
Atty. Gen. 22-IB16, 2022 WL 1547876, at 3 (Apr. 29, 2022); Del. Op. Atty. Gen. 20-IB30, 2020
WL 7663559, at 1 (Dec. 7, 2020); 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.").
3

CONCLUSION
For the foregoing reasons, we determine that DFS did not violate FOIA by denying access
to the requested records, as they are exempt from disclosure under FOIA.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Lisa M. Morris, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

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