Can a Delaware reporter FOIA the police interview transcripts of teens arrested for car theft to learn about their motives?

Plain-English summary

Cape Gazette reporter Melissa Steele asked the Delaware Department of Safety and Homeland Security (DSHS) for "investigative documents with interviews of the [teens]" who were arrested in connection with a car theft in New Castle County. She wanted to understand the teens' motivation. DSHS denied under § 10002(o)(3) (investigatory files), § 10002(o)(6) (statutory/common-law exemption), and 11 Del. C. chapters 85 and 86 (police records).

Steele petitioned, arguing the public interest in understanding why teens steal cars outweighed any concern. She emphasized she was not seeking the teens' identities, only motivation information.

The AG affirmed the denial in a notably short opinion. The investigatory-files exemption applied "clear[ly] on the face of the request." Police interview transcripts and investigative documents about specific arrested individuals are exactly what § 10002(o)(3) was written to cover. Because the exemption was facially clear, DSHS was not required to file a sworn affidavit (the Judicial Watch v. Univ. of Del. affidavit requirement only applies when there is a factual question about whether records exist or whether the exemption applies).

The opinion also signals a broader rule: reporter motivation does not change the FOIA analysis. The fact that Steele was investigating juvenile justice patterns, and not trying to identify or stigmatize the teens, did not turn an exempt record into a public one.

What this means for you

If you are a journalist or researcher covering juvenile crime

The investigatory-files exemption is a categorical bar, not a balancing test. You cannot get into investigative files by showing high public interest. Practical workarounds:

• Court records. Once a juvenile is adjudicated (or charged in adult court), some court records become public (subject to juvenile-confidentiality rules). Family Court records and the disposition of the case may give you the underlying allegations.
• Anonymized aggregate data. Police departments often produce statistics on arrests by age, type of crime, and outcome. These do not run into the investigatory-files exemption.
• Public officials' statements. Police departments, prosecutors, and elected officials sometimes discuss patterns in press conferences or public reports. Quote those.
• Defense attorneys and youth-justice advocates. They may share information from discovery (with court permission and ethical limits).
• Victims and witnesses. They are not bound by FOIA; you may interview them directly.

If you handle FOIA for a Delaware law-enforcement agency

This opinion confirms that you can deny police investigative files quickly without a detailed affidavit when the exemption is clear on the face of the request. Practical points:

• Cite § 10002(o)(3) and the chapter-85/86 statutory provisions.
• Indicate the type of records being withheld (interview transcripts, investigative reports) without revealing specific contents.
• Be prepared to respond to a petition with a brief explanation; you generally do not need an extensive affidavit unless the request is borderline.

If you are a juvenile-justice or victims-rights advocate

The investigatory-files exemption protects both prosecutorial integrity and victim/witness privacy. It applies whether or not the case is closed. The chilling-effect rationale (people will not report or cooperate if their statements are public) supports the categorical rule.

If you are an attorney advising on a corrections or juvenile-justice case

The face-of-the-request rule from Judicial Watch (267 A.3d at 1012) is useful: "unless 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." When the request is for police investigative files about an arrest, the exemption is facially clear and no affidavit is required.

Common questions

Q: Why does the exemption apply even when the requester does not want identifying information?
A: The exemption is for the records themselves, not for whether the requester might use them. Even if Steele only wanted motivation information, the underlying records are interview transcripts and investigative reports. Releasing them to her would mean releasing them to all (FOIA does not allow agencies to give different answers to different requesters).

Q: Doesn't the public have a right to know about juvenile crime patterns?
A: The public has access to aggregate data, court adjudications, press releases, and other non-investigative sources. The investigatory-files exemption only protects investigative documents themselves.

Q: Do juvenile records get extra protection?
A: Yes. Juvenile-confidentiality rules and 10 Del. C. ch. 10 (the Family Court statute) layer on top of FOIA. Even when an investigative file becomes public for adults, the juvenile equivalent often does not.

Q: What about press conferences? Don't police announce details there?
A: Police can announce details voluntarily; that is a different mechanism than FOIA disclosure. What is announced in a press conference is public; what stays in the file is not.

Q: What if the case has been closed for years?
A: The investigatory-files exemption survives investigation closure. News-Journal Co. v. Billingsley (1980) is the leading authority. See Op. 21-IB06 for a recent application.

Q: Will the AG ever order disclosure of police investigative files?
A: Not under § 10002(o)(3). The exemption is categorical. The AG can find a violation when an agency withholds non-investigative records mistakenly, but not when the records are clearly investigative.

Q: Do I need to file an affidavit when challenging a police-records denial?
A: No. The agency has the burden of proof (§ 10005(c)). You need to identify the request, the denial, and any factual gaps in the agency's reasoning. If the denial is facially correct on a categorical exemption, you will lose; if there are factual issues (e.g., whether records are really investigative), you may have a chance.

Q: What is the Cape Gazette?
A: The Cape Gazette is a Sussex County, Delaware newspaper covering local news in the Lewes/Rehoboth area. The investigative reporting at issue was a typical local-crime accountability story.

Background and statutory framework

Section 10002(o)(3) is the investigatory-files exemption. It excludes "[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 Court of Chancery in News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), held that the exemption "attaches as soon as a public body is made aware of a potential issue and the exemption survives after the investigation is completed." The Superior Court in Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985), applied the exemption to "statements of witnesses and other documents . . . as a result of a criminal investigation."

The Delaware Supreme Court in Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021), articulated the face-of-the-request standard: an affidavit is not required when "it is clear on the face of the request that the demanded records are not subject to FOIA." The DSHS request here met that standard, so DSHS could deny without supplying an affidavit.

Title 11, chapters 85 and 86, regulate police records confidentiality at a state-statute level, providing additional support for the FOIA denial through the § 10002(o)(6) hook.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions and exemptions)
- 29 Del. C. § 10005 (Enforcement; burden of proof)
- 11 Del. C. ch. 85 (Bureau of Identification)
- 11 Del. C. ch. 86 (Police records)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), face-of-the-request standard
- Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985), criminal investigation records exempt

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/10/10/23-ib29-10-10-2023-foia-opinion-letter-to-melissa-steele-re-foia-complaint-concerning-the-delaware-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/10/Attorney-General-Opinion-No.-23-IB29.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-IB29
October 10, 2023

VIA EMAIL
Melissa Steele
Cape Gazette
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Safety and Homeland Security

Dear Ms. Steele:

We write regarding your correspondence alleging that 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 the DSHS did not violate FOIA by denying access to these requested records.

BACKGROUND

On August 22, 2023, you submitted a FOIA request to the DSHS about teens who were arrested in connection with a car theft in New Castle County. You sought "investigative documents with interviews of the [teens] that explain their motivation." After your request was sent for legal review on September 12, 2023, the DSHS denied this request that same day, stating that "police reports and investigatory files compiled for civil or criminal law-enforcement purposes . . . are exempt from FOIA pursuant to 29 Del. C. § 10002(o)(3), 29 Del. C. § 10002(o)(6) and 11 Del. C. Ch. 85 and 86." This Petition followed.

In the Petition, you allege that the request should be granted, because you disagree with DSHS's interpretation of the law. You argue fulfilling your FOIA request is a matter of significant public interest. Further, you assert that you are not seeking identification of these teens, merely more information about why these teens stole cars. You believe this information should be available to you without the need for a FOIA request.

The DSHS, through its legal counsel, replied to the Petition. The DSHS maintains that the investigative information you seek is categorically exempt from FOIA, and records that fall under one of the exemptions to FOIA are not public records and are not required to be disclosed. The DSHS states that the Court of Chancery determined that the investigatory files exemption attaches when the public body is made aware of a potential issue and the exemption survives after the investigation is completed. As police reports and investigatory files are exempt from FOIA, the DSHS argues that its response to this request was appropriate.

DISCUSSION

The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. However, when a request is clear on its face that the records sought are not subject to FOIA, to meet its burden, a public body need not state under oath the efforts, and results of those efforts, to determine whether there are responsive records. In this case, the request sought from the DSHS "investigative documents" compiled in connection with the teens' arrests. FOIA 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 determine that it is clear on the face of this request that the records you seek are exempt from FOIA under the investigatory files exemption and are not required to be disclosed.

CONCLUSION

For the foregoing reasons, we determine that the DSHS did not violate FOIA by denying access to the requested records.

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