Can someone ask Delaware DHSS for the full animal-cruelty complaint report under FOIA, and does that change if the report identifies the suspect and the witnesses?

Official title

23-IB05 02/03/2023 FOIA Opinion Letter to Christiane Marchio re: FOIA Complaint Concerning the Delaware Department of Health and Social Services

Plain-English summary

On December 14, 2022, Christiane Marchio submitted a FOIA request to the Delaware Department of Health and Social Services (DHSS) for "the full report" on a specific animal-welfare complaint. After clarifying questions, DHSS understood the request as seeking the animal-welfare complaint that a particular individual had filed.

DHSS denied the request on January 6, 2023. The denial said the report was not a public record and that the requested information had to be sought through a subpoena. Marchio filed a petition challenging the denial and saying that a responding officer had told her she could get the report through FOIA.

DHSS responded with the FOIA coordinator's affidavit. The responsive record was a LEISS report identifying the suspect and the individuals who filed the complaint. The Delaware Animal Services division (which sits within DHSS) treats victim and witness contact information as confidential to maintain a willingness in the public to call in animal-cruelty tips. Releasing the report would chill that willingness. The investigatory files continue to be confidential after closure.

The AG affirmed. The investigatory files exemption in 29 Del. C. § 10002(o)(3) covers "[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 opinion states that animal welfare officers are involved in law enforcement, that the LEISS report is the complaint that identifies the suspect and complainant and triggers the investigation, and that the investigatory files exemption continues to apply after an investigation is closed. So the report was exempt.

The AG also flagged a threshold problem: Marchio is not a Delaware citizen, so she lacks standing to invoke the FOIA petition process under § 10005(e). The AG decided to issue the opinion as a courtesy but noted she could have been turned away on that ground alone.

The AG also cautioned DHSS for invoking § 10002(o)(3) for the first time in its Response rather than in the original denial, reminding the public body "to give due consideration to the reasons asserted in its denials in the future."

What this means for you

For people who report animal cruelty in Delaware. The opinion holds that the LEISS report identifying the suspect and the individuals who filed the complaint is exempt as part of an investigatory file under § 10002(o)(3), and that the exemption continues after the investigation closes. DHSS told the AG that complainants and witnesses are assured their information is protected and that releasing it would have a chilling effect on the public's willingness to report animal-cruelty issues.

For people who suspect they were named in an animal-cruelty complaint. The opinion holds you cannot get the report through FOIA. In its original denial DHSS stated that the requested information must be sought through a subpoena. The investigatory-files exemption applied, so the AG found no FOIA violation in the denial.

For Delaware Animal Services and other animal-welfare agencies. The opinion treats the LEISS report (the initial complaint that triggers the investigation) as part of the investigatory file covered by § 10002(o)(3), while DHSS counsel separately warned that disclosure of victim and witness information would discourage reports. It confirms the exemption survives after closure.

For FOIA coordinators across Delaware state agencies. The opinion makes two points. First, the AG cautioned DHSS to "give due consideration to the reasons asserted in its denials," because DHSS raised § 10002(o)(3) for the first time in its petition response rather than in the original denial. Second, the exemption reached the initial complaint, not just the later working file, because the animal welfare officers are involved in law enforcement and the LEISS report triggers the investigation.

For non-Delaware citizens considering a Delaware FOIA petition. The opinion notes that the requester "is not a Delaware citizen and lacks standing to invoke the petition process under 29 Del. C. § 10005(e)." The AG issued this opinion "as a courtesy" notwithstanding that.

Common questions

What's a LEISS report?
The opinion describes it as the record that responds to the request: the report that "identifies the suspect and individuals who filed the complaint." The AG treated it as the initial crime report that is the basis for the investigatory file and triggers the investigation. The opinion does not expand the acronym or describe the underlying system in detail.

Are animal-welfare officers really law enforcement?
The opinion states that "[t]he animal welfare officers are involved in law enforcement," and on that basis treats the LEISS report as part of an investigatory file under the law-enforcement exemption. Footnote 7 cites 11 Del. C. § 8502(11) and 16 Del. C. § 3031F for that point.

Why does the investigatory-files exemption survive after the investigation closes? The opinion says the exemption continues after closure. Footnote 9 cites News-Journal Co. v. Billingsley, 1980 WL 3043, at *2-3 (Del. Ch. Nov. 20, 1980), for the rule that it attaches when the agency learns of a potential issue and survives completion of the investigation. DHSS counsel separately warned that releasing victim and witness information would discourage future reports.

Could a victim of the alleged cruelty get the report under a different statute? The opinion does not address other statutes. In its denial DHSS said the requested information "must be sought through a subpoena," but the AG ruled only on the FOIA question and held FOIA was not the path.

What was the standing issue?
The opinion notes the requester "is not a Delaware citizen and lacks standing to invoke the petition process under 29 Del. C. § 10005(e)." The AG could have declined on that basis but issued the opinion "as a courtesy."

Why did the AG flag the late-asserted reason?
DHSS's original denial said the report was not a public record and had to be sought through a subpoena, without invoking § 10002(o)(3). DHSS first cited § 10002(o)(3) in its petition response. The AG accepted the ground but cautioned DHSS "to give due consideration to the reasons asserted in its denials in the future."

Background and statutory framework

29 Del. C. § 10002(o)(3) 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 AG applied that exemption to the LEISS report, reasoning that animal welfare officers are involved in law enforcement, that the LEISS report is the complaint that triggers the investigation, and that the exemption continues after an investigation is closed.

The AG treated Marchio's correspondence as a petition under 29 Del. C. § 10005, where the public body has the burden to justify its denial. The opinion also notes that, under 29 Del. C. § 10005(e), the requester (a non-Delaware citizen) lacked standing to invoke the petition process, though the AG issued the determination as a courtesy.

The official footnotes cite 29 Del. C. §§ 10003 and 10005(c) for access and burden of proof, 11 Del. C. § 8502(11) and 16 Del. C. § 3031F for the animal welfare officers’ law-enforcement role, and News-Journal Co. v. Billingsley, 1980 WL 3043, at *2-3 (Del. Ch. Nov. 20, 1980), for the continuing investigatory-files exemption.

Citations

• 29 Del. C. § 10002(o)(3): investigatory files exemption
• 29 Del. C. § 10005: petition for determination; burden of proof
• 29 Del. C. § 10005(e): standing limited to citizens
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/02/03/23-ib05-02-03-2023-foia-opinion-letter-to-christiane-marchio-re-foia-complaint-concerning-the-delaware-department-of-health-and-social-services/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/02/Attorney-General-Opinion-No.-23-IB05.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400
820 NORTH FRENCH STREET
FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Attorney General Opinion No. 23-IB05
February 3, 2023

VIA EMAIL

Christiane Marchio
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Health and Social Services

Dear Christiane Marchio:

We write regarding 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”). 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 the DHSS did not violate FOIA by denying access to the report you seek.

BACKGROUND

On December 14, 2022, you filed a FOIA request with the DHSS seeking the “full report” regarding a specific animal welfare complaint. 1 The DHSS’s FOIA coordinator followed up with questions to clarify the nature of your request, and you responded that you were seeking an animal welfare report made by a certain individual. On January 6, 2023, the DHSS responded, denying access to the report because it is not a public record and stating that the requested information must be sought through a subpoena. 2 This Petition followed, in which you challenge the denial of access

1
Petition.
2
Id.

to this report and allege that the responding officer informed you that you could receive a copy of this report through FOIA.

The DHSS’s counsel responded to the Petition on its behalf (“Response”) and included an affidavit from the FOIA coordinator. The FOIA coordinator attests that the record that responds to this request is a LEISS report that identifies the suspect and individuals who filed the complaint. As this initial crime report is the basis for the investigatory file, the DHSS claims this report you seek is exempt pursuant to 29 Del. C. § 10002(o)(3). The DHSS’s counsel also states that victims and witnesses who contact Delaware Animal Services are assured that their information will be protected by the division, and the release of such information would have a chilling effect on the public’s willingness to contact the division for animal cruelty and control issues. After such an investigation is closed, the DHSS asserts that the investigatory records continue to be confidential.

DISCUSSION

FOIA requires a public body to provide citizens with reasonable access to public records in accordance with the statute. 3 In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. 4 In certain circumstances, an affidavit may be required to meet that burden. 5

In this case, the DHSS asserts that the investigatory files exemption in Section 10002(o)(3) applies to the requested report, 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.” 6 The animal welfare officers are involved in law enforcement, 7 and the LEISS report is the

3
29 Del. C. § 10003.
4
29 Del. C. § 10005(c).
5
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021) (“[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts.”). 6 We note that the DHSS asserted this reason for the first time in its Response to your Petition and respectfully caution the DHSS to give due consideration to the reasons asserted in its denials in the future. See, e.g., Del. Op. Atty. Gen. 22-IB16, 2022 WL 1547876, at *3 (Apr. 29, 2022); 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.”). 7 11 Del. C. § 8502(11); 16 Del. C. § 3031F.

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complaint that identifies the suspect and complainant and triggers the investigation. 8 The investigatory files exemption continues to apply after an investigation is closed. 9 Thus, this requested report is exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3). 10

CONCLUSION

For the foregoing reasons, we determine that in these circumstances, the DHSS did not violate FOIA by denying you access to the requested report.

Very truly yours,

/s/ Alexander S. Mackler
__________
Alexander S. Mackler
Chief Deputy Attorney General

cc: Joanna S. Suder, Deputy Attorney General Gabriela Kejner, Deputy Attorney General Dorey L. Cole, Deputy Attorney General

8
Response, Aff. of the DHSS FOIA coordinator.
9
News-Journal Co. v. Billingsley, 1980 WL 3043, at 2-3 (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 While we have decided to issue a determination here as a courtesy, we feel compelled to note that as a noncitizen, you lack standing to avail yourself of the provisions contained in Section 10005, including the petition process set forth in Section 10005(e).
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