DE 24-IB11 2024-02-23

Can a Delaware reporter use FOIA to get a list of police calls for service to a specific address?

Short answer: No. The AG concluded DSP could withhold a five-year list of calls for service to a private Wilmington address, because every call to a residence initiates a police investigation and the resulting records fall within FOIA's investigatory files exemption.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

24-IB11 02/23/2024 FOIA Opinion Letter to Isabel Hughes re: FOIA Complaint Concerning the Division of Delaware State Police of the Department of Safety and Homeland Security

Plain-English summary

A Delawareonline reporter asked DSP for the date and type (domestic disturbance, welfare check, alarm activation, and so on) of calls for service to a specific Wilmington residence between 2018 and 2023. DSP refused under three exemption theories, the strongest being that the records were "investigatory files" compiled for criminal law enforcement. The reporter argued that a count and category of calls is run-of-the-mill operational data, not investigative work product, and pointed out that other police agencies in Delaware had answered similar questions outside the FOIA process.

The AG sided with DSP. Once the agency receives a call for service, an investigation begins, so calls-for-service entries about a residence are records of investigations, and Delaware courts read the investigatory files exemption to attach the moment an agency is "first made aware of a potential issue." The exemption keeps applying after the case is closed, and what other agencies do voluntarily does not bear on whether DSP violated FOIA. Because the exemption alone resolved the case, the AG did not reach DSP's privacy or criminal-justice-information theories.

What this means for you

If you are a Delaware journalist or researcher trying to map police activity at a specific address

Calls-for-service data tied to a particular address is hard to get out of DSP through FOIA. DSP can lean on the investigatory files exemption no matter how routine the underlying call. Consider these alternatives that some journalists rely on:

Aggregate, non-address-specific datasets if the agency publishes them.
Court records, which are public once a case is filed and not subject to the FOIA investigatory exemption.
Records from local agencies (Wilmington Police, New Castle County Police), which may have different policies and which the AG noted are not bound by what DSP does.
Direct interviews and on-scene reporting, which is how addresses come into stories without depending on a FOIA log.

If you are a Delaware FOIA coordinator

This opinion gives you firm support for denying calls-for-service requests at private addresses under 29 Del. C. § 10002(o)(3). Cite the News-Journal v. Billingsley line that the exemption attaches "as soon as the agency is first made aware of a potential issue" and survives the close of the investigation. You do not need to layer privacy or CJI exemptions on top, though you can.

If you are a Delaware homeowner or tenant worried about privacy

The AG's reasoning protects you on FOIA grounds. A neighbor or curious member of the public cannot extract a record of police visits to your home through a FOIA request to DSP, even if those visits ended without charges.

Common questions

Why is a call for service treated as part of an investigation?

The AG's logic is that the moment a call comes in, the agency starts to evaluate whether something is wrong, and that evaluation is investigatory. Delaware courts have read the exemption broadly: it attaches once the agency is "first made aware of a potential issue" rather than waiting for a formal investigation to be opened.

Does this exemption ever expire?

Not on its own under FOIA. Citing News-Journal Co. v. Billingsley, the AG reaffirmed that the investigatory files exemption survives the close of the investigation. Other paths (court filings, criminal discovery, civil litigation) can put the same information into the public domain, but FOIA does not.

What about the comparison to other police agencies that released similar information?

The AG repeated a point made in many Delaware FOIA opinions: another agency's voluntary disclosure does not waive an exemption claim, and the AG's office does not police consistency across agencies. A FOIA decision is about whether the responding agency has met its statutory burden, not about whether other agencies have made different choices.

Could a privacy challenge ever overcome this exemption?

Privacy works the other way under FOIA: it is a reason to withhold, not a reason to compel disclosure. The AG noted that DSP also asserted a privacy interest in calls-for-service at a residence, but the office did not have to reach that issue once the investigatory exemption disposed of the case.

Background and statutory framework

The reporter submitted a January 19, 2024 FOIA request for "the date and type (i.e., domestic disturbance, welfare check, alarm activation etc) of the DSP calls for service/response to: 44 N. Pennewell Drive, Wilmington, DE 19809 between 2018 and 2023." DSP denied the request on January 23, 2024, citing 29 Del. C. § 10002(o)(3) (investigatory files), 10002(o)(6) (records privileged under statute or common law), and 11 Del. C. Chapters 85 and 86 (criminal justice information and CJIS). The reporter petitioned, arguing the response was conclusory and that the records were ordinary business records, not investigatory files.

The investigatory files exemption in § 10002(o)(3) excludes from FOIA "[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." Under § 10005(c), the agency carries the burden of justifying a denial.

The AG had previously held in 17-IB05 that the exemption attaches "as soon as an agency is first made aware of a potential issue," and the Court of Chancery in News-Journal Co. v. Billingsley held the exemption continues to apply after an investigation is closed. Because the agency had no obligation to layer in additional theories once the investigatory exemption resolved the matter, the AG declined to reach DSP's privacy and CJI defenses.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(o)(3) (investigatory files exemption)
29 Del. C. § 10002(o)(6) (records privileged under statute or common law)
29 Del. C. § 10003(a) (public access)
29 Del. C. § 10005(c) (burden of proof on public body)
11 Del. C. Chapters 85 and 86 (criminal justice information)
News-Journal Co. v. Billingsley, 1980 WL 3043, at *2-3 (Del. Ch. Nov. 20, 1980)
Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847 (March 10, 2017)
Del. Op. Att'y Gen. 22-IB36, 2022 WL 8067856 (September 30, 2022)

Source

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. 24-IB11
February 23, 2024
VIA EMAIL
Isabel Hughes
[email protected]

RE:

FOIA Petition Regarding the Division of Delaware State Police of the Department of Safety and Homeland Security

Dear Ms. Hughes:
We write regarding your correspondence alleging that the Division of Delaware State Police of the Department of Safety and Homeland Security ("DSP") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 DSP did not violate FOIA by denying access to the requested records.

BACKGROUND

On January 19, 2024, you submitted a request to the DSP seeking "the date and type (i.e., domestic disturbance, welfare check, alarm activation etc) of the DSP calls for service/response to: 44 N. Pennewell Drive, Wilmington, DE 19809 between 2018 and 2023." On January 23, 2024, DSP denied this request pursuant to 29 Del. C. §§ 10002(o)(3) (exempting investigatory files compiled for criminal law enforcement purposes from FOIA), 10002(o)(6) (exempting records privileged under statute or common law), and 11 Del. C. Chapters 85 (relating to criminal justice information) and 86 (relating to CJIS). This Petition followed.

In this Petition, you argue that the denial is conclusory and fails to specify how the requested records are either police reports or investigatory in nature. You further argue, specifically, that the number and nature of calls are not investigatory in nature but rather are kept in the ordinary course of business and would be admissible in court proceedings. You also point out that Wilmington Police and New Castle County Police have been responsive to recent requests for similar information but note that neither of these requests was made pursuant to FOIA. You argue that given the inconsistency in agency responses, the state should err on the side of transparency and produce the requested records.

The DSP, through its legal counsel, replied to your Petition on February 5, 2024. The DSP contends that its response was appropriate because a call for police service to respond to a residence initiates a police investigation. The DSP further asserts that disclosure of calls for service at a residence would violate individuals' legitimate expectation of privacy. Lastly, the DSP asserts that other police agency's actions are irrelevant because FOIA does not preclude a public body from voluntarily waiving a FOIA exemption.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[1] In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.[2] As an initial matter, this office has previously determined that other agencies' actions are irrelevant to determining whether a violation of FOIA has occurred.[3]

The DSP asserts that the investigatory files exemption in Section 10002(o)(3) applies, which exempts from the definition of public records "[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." "Delaware courts have made clear that, for purposes of FOIA, the investigatory exemption attaches as soon as an agency is first made aware of a potential issue."[4] The investigatory files exemption is not limited to pending investigations and continues to apply after an investigation is closed.[5] This request seeks information regarding the date and type of calls for service to the DSP from a particular residence, which on its face, would initiate police investigation. Thus, the requested records are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

As denial of the FOIA request was appropriate pursuant to the investigatory files exemption, it is unnecessary to evaluate the DSP's other defenses.

CONCLUSION

For the foregoing reasons, we determine that the DSP 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:

Joseph C. Handlon, Deputy Attorney General
Kayli H. Spialter, Deputy Attorney General

[1] 29 Del. C. § 10003(a).
[2] 29 Del. C. § 10005(c).
[3] Del. Op. Att'y Gen. 22-IB36, 2022 WL 8067856, at 2 (September 30, 2022).
[4] Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, at 3 (March 10, 2017).
[5] News-Journal Co. v. Billingsley, 1980 WL 3043, at 2-3 (Del. Ch. Nov. 20, 1980); 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).