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 "investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files." Animal-welfare officers are statutorily designated law-enforcement personnel under 11 Del. C. § 8502(11) and 16 Del. C. § 3031F. The LEISS report (the initial complaint that triggers the investigation) is part of the investigatory file. Under News-Journal Co. v. Billingsley (Del. Ch. 1980), the investigatory files exemption attaches as soon as the public body becomes aware of a potential issue and survives after the investigation closes.

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 gently chastised DHSS for invoking § 10002(o)(3) for the first time in its Response rather than in the original denial; the public body should give due consideration to the reasons asserted in the original denial.

What this means for you

For people who report animal cruelty in Delaware. This opinion confirms that your name, address, and the complaint you filed are not subject to FOIA. They are protected as part of an investigatory file, and the protection lasts after the investigation ends. You can call animal control without fearing that the alleged abuser will FOIA your information.

For people who suspect they were named in an animal-cruelty complaint. You cannot use FOIA to get the LEISS report identifying the complainant. The way to obtain that information is through a subpoena once a charge is filed and a court case begins. If no charge is ever filed, the complaint may stay confidential indefinitely.

For Delaware Animal Services and other animal-welfare agencies. Build the LEISS-confidentiality assurance into your tip-line scripts, your printed materials, and your training. AG 23-IB05 is the citation that supports the practice. Document the chilling-effect rationale in your FOIA-response affidavits whenever you assert § 10002(o)(3); the AG accepted the affidavit here and that helped.

For FOIA coordinators across Delaware state agencies. Two takeaways. First, give the right reason at denial time. Adding a new ground in the petition response is allowable but invites a footnote-level rebuke. Second, the investigatory-files exemption is broader than people think: it captures the initial complaint, not just the working investigation file. As long as the agency has law-enforcement authority and the records are compiled for that purpose, § 10002(o)(3) reaches the inputs and the outputs.

For non-Delaware citizens considering a Delaware FOIA petition. Read the AG's footnote 10. Non-residents lack standing under § 10005(e). The AG decided to issue this opinion "as a courtesy"; future non-residents may not get that treatment. If you live outside Delaware and need a Delaware record, work with a Delaware-citizen partner.

Common questions

What's a LEISS report?
LEISS is the Law Enforcement Investigative Support System, the database used by Delaware law enforcement to log and route initial complaints, suspect/victim/witness information, and case status. A LEISS report is the structured record that identifies the suspect, the complainant, the nature of the complaint, and the assigned investigator. It is the entry point of the investigatory file.

Are animal-welfare officers really law enforcement?
Yes, in Delaware. 11 Del. C. § 8502(11) and 16 Del. C. § 3031F give Delaware Animal Services and animal welfare officers law-enforcement powers, including the authority to investigate, charge, and refer for prosecution. Some are also Cruelty to Animals Officers under separate authority.

Why does the investigatory-files exemption survive after the investigation closes?
News-Journal Co. v. Billingsley (Del. Ch. 1980) held that the exemption attaches when the public body becomes aware of a potential issue and continues after closure. The rationale is that release after closure would chill the witnesses, sources, and informants who relied on confidentiality at the time. AG opinions 17-IB47, 05-IB16, and 98-IB13 all reaffirm.

Could a victim of the alleged cruelty get the report under a different statute?
Possibly. Delaware's victim's rights statute and the criminal procedure rules give victims access to certain case information once a charge is filed. Civil discovery in a related lawsuit (e.g., an animal owner's negligence claim against the alleged abuser) might also reach the report subject to a protective order. FOIA is not the path.

What was the standing issue?
Delaware FOIA's petition process under § 10005(e) is open to "any citizen," which the AG (per 16-IB20) reads as Delaware citizens only. Marchio was a non-Delaware resident. The AG could have dismissed on that basis without addressing the merits. Issuing the opinion anyway was framed as a courtesy.

Why did the AG flag the late-asserted reason?
DHSS originally denied with "this isn't a public record, get it via subpoena." That phrasing is not a § 10002(o)(3) invocation. DHSS first cited § 10002(o)(3) in its petition response. The AG noted that public bodies should "give due consideration to the reasons asserted in [their] denials" and cited prior opinions making the same point. The AG nonetheless accepted the late-cited ground because it was substantively correct.

Background and statutory framework

29 Del. C. § 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."

11 Del. C. § 8502(11) and 16 Del. C. § 3031F give animal-welfare officers law-enforcement status.

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required.

29 Del. C. § 10005(e) limits the FOIA petition process to "any citizen," which has been interpreted as Delaware citizens since AG 16-IB20 (Sept. 30, 2016).

The investigatory-files-survives-closure rule comes from News-Journal Co. v. Billingsley (Del. Ch. 1980) and AG opinions 17-IB47 (Sept. 22, 2017), 05-IB16 (Jun. 22, 2005), and 98-IB13 (Dec. 8, 1998).

Citations

• 29 Del. C. § 10002(o)(3): investigatory files exemption
• 29 Del. C. § 10003: reasonable access
• 29 Del. C. § 10005, § 10005(c), § 10005(e): petition; burden; standing
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 11 Del. C. § 8502(11): definition of police officer
• 16 Del. C. § 3031F: animal welfare officers
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980): exemption survives closure
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): affidavit standard
• Del. Op. Att'y Gen. 17-IB47 (Sept. 22, 2017)
• Del. Op. Att'y Gen. 05-IB16 (Jun. 22, 2005)
• Del. Op. Att'y Gen. 98-IB13 (Dec. 8, 1998)
• Del. Op. Atty. Gen. 22-IB16 (Apr. 29, 2022): late-asserted reasons
• Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017): late-asserted reasons

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

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. 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. 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. This Petition followed, in which you challenge the denial of access 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. In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. In certain circumstances, an affidavit may be required to meet that burden.

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." 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. The animal welfare officers are involved in law enforcement, and the LEISS report is the complaint that identifies the suspect and complainant and triggers the investigation. The investigatory files exemption continues to apply after an investigation is closed. Thus, this requested report is exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

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

(Note: While this Opinion was issued as a courtesy, the requester is not a Delaware citizen and lacks standing to invoke the petition process under 29 Del. C. § 10005(e).)