DE 24-IB18 2024-05-07

Can a Delaware county refuse to release zoning-violation records as 'investigatory files'?

Short answer: Yes. The AG ruled Sussex County properly withheld records about violations on a Rehoboth Beach property under 29 Del. C. § 10002(o)(3), the investigatory files exemption, after the County submitted a Planning Director affidavit confirming an open zoning investigation.

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 AG opinions are persuasive authority but not binding precedent.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-IB18 05/07/2024 FOIA Opinion Letter to Shannon Marvel McNaught re: FOIA Complaint Concerning Sussex County

Plain-English summary

A Dover Post reporter filed a FOIA request to Sussex County for "any and all documents and other media related to violations on property bordering Silver Lake in Rehoboth Beach this year." The County denied access, citing the investigatory files exemption in 29 Del. C. § 10002(o)(3). The reporter petitioned, arguing that a notice of violation is a statement of facts rather than an investigative document, that DNREC freely provides notices of violation without a FOIA request, and that the actual investigation was being run by the U.S. Army Corps of Engineers, not the County.

The AG sided with the County. Sussex County's Director of Planning and Zoning submitted a sworn affidavit attesting that the Department was conducting its own ongoing investigation of the property and that the requested records were part of the investigatory file. The AG accepted that affidavit as sufficient evidence under Judicial Watch v. Univ. of Del. The fact that another agency (the Army Corps) might also be investigating did not matter; each public body's compliance with FOIA is judged on its own records and circumstances. DNREC's separate practice of releasing violation notices without a FOIA request was likewise irrelevant to whether Sussex County could invoke the exemption.

What this means for you

If you are a journalist seeking enforcement records

The investigatory files exemption is sticky as long as the investigation is "ongoing." Get the agency to confirm in writing whether the matter is closed. Once an investigation closes, the exemption no longer applies and the records become disclosable. If a parallel federal investigation exists, ask the federal agency too: federal FOIA timelines and exemptions are different and might unlock the same factual record from the other side.

If you are a property owner under investigation

The County's investigation file is shielded from public disclosure while it is open. That includes inspector notes, photographs, internal memos, and any communications about the property. Once the matter is resolved (closed without action, or via a notice of violation that becomes a final agency decision), much of that record should become releasable.

If you are a public body invoking the exemption

This opinion is a useful template. Submit a sworn affidavit from someone with personal knowledge (the department head or supervising investigator) confirming three things: (1) the matter is an investigation with a law-enforcement function, (2) the investigation is ongoing, and (3) the records sought are part of the file. Bare assertions from counsel will not meet the Judicial Watch burden.

Common questions

Why doesn't the Army Corps investigation matter?

Because FOIA assesses each public body's records on its own. Even if the Army Corps was the lead investigator, Sussex County's Planning and Zoning Department had its own concurrent investigation. The County's records were exempt as long as that local investigation was open, regardless of what the federal agency was doing.

Why doesn't DNREC's practice of releasing notices matter?

Because FOIA does not require uniformity across agencies. Each public body decides whether records are exempt based on the statute and its own circumstances. DNREC apparently treats notices of violation as routine public-record-style disclosures; Sussex County treated the investigation file as exempt. Both can be defensible at the same time.

Is the investigatory files exemption broad or narrow?

The exemption covers "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." The AG read this broadly enough to cover County zoning enforcement, citing the County's law-enforcement responsibilities under Sussex Cty. C. § 115-228 and § 115-229. Once the investigation closes, the exemption ends.

What if Sussex County had no affidavit?

It would have lost. Judicial Watch v. Univ. of Del. established that bare counsel-letter assertions are not always enough to meet the public body's burden of proof. The Director of Planning and Zoning's sworn statement here was the evidence that justified the denial.

Background and statutory framework

29 Del. C. § 10003(a) requires reasonable access to public records. The public body has the burden of justifying any denial under § 10005(c), and the Delaware Supreme Court in Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021) confirmed that a sworn affidavit may be required to meet that burden in disputed cases.

The investigatory files exemption in 29 Del. C. § 10002(o)(3) covers files "compiled for civil or criminal law-enforcement purposes including pending investigative files." Sussex County's authority to enforce its zoning code stems from Sussex Cty. C. § 115-228 and § 115-229, which give the Planning and Zoning Department law-enforcement responsibilities. The AG had previously held in Del. Op. Att'y Gen. 22-IB36 that the actions of other entities (federal agencies, other state offices) do not alter a Delaware public body's FOIA analysis.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(o)(3) (investigatory files exemption)
29 Del. C. § 10003(a) (right of access)
29 Del. C. § 10005 (petition procedure)
29 Del. C. § 10005(c) (burden of proof)
Sussex Cty. C. § 115-228 (County law-enforcement authority)
Sussex Cty. C. § 115-229 (zoning enforcement)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Del. Op. Att'y Gen. 22-IB36, 2022 WL 8067856 (Sept. 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-IB18
May 7, 2024

VIA EMAIL
Shannon Marvel McNaught
[email protected]

RE:

FOIA Petition Regarding Sussex County

Dear Ms. McNaught:

We write in response to your correspondence alleging that Sussex County violated Delaware's 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 determine that the County has not violated FOIA by denying access to the requested records.

BACKGROUND

You submitted a FOIA request to Sussex County on March 18, 2024, seeking "any and all documents and other media related to violations on property bordering Silver Lake in Rehoboth Beach this year."[1] The County denied access to these records pursuant to 29 Del. C. § 10002(o)(3), providing a detailed explanation from its legal counsel that the requested records are part of investigatory files compiled for civil or criminal law enforcement purposes. This Petition followed.

In the Petition, you contest the propriety of the County's response to your request, as a notification of violation is not an investigative document; it is a statement of facts. You also point out that the Delaware Department of Natural Resources and Environmental Control provides notices of violation without a FOIA request and Delaware courts provide warrants without a FOIA request. Additionally, you allege that the U.S. Army Corps of Engineers, not the County, is conducting the investigation of this property.

On April 18, 2024, the County, through its legal counsel, replied to the Petition and provided the affidavit of the Sussex County Director of Planning and Zoning ("Response"). The County asserts that notwithstanding any investigation conducted by the U.S. Army Corps, the County also is investigating this matter. In the submitted affidavit, the Director attests that the "Planning and Zoning Department is involved in an ongoing investigation of the property Petitioner identified in her March 18, 2024 [request], and referenced in her Petition," and as you specifically seek records pertaining to the investigation, "the documents contained in the file are not deemed public records subject to disclosure under FOIA as they are part of an investigatory file."[2] The County states the court's practices are not relevant, as the courts are not subject to FOIA, and that DNREC's practices are also inapplicable, as another agency's actions are not relevant in determining whether a violation of FOIA occurred in this matter.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[3] The public body has the burden of proof to justify its denial of access to records.[4] In certain circumstances, a sworn affidavit may be required to meet that burden.[5] As an initial matter, we agree that the actions of other entities do not impact this determination.[6]

The County asserts that the investigatory files exemption in Section 10002(o)(3) applies, 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." The County provided an affidavit from the Director of Planning and Zoning, who attests to having the knowledge and authority to execute the affidavit. The Director states under oath that the Department is conducting an ongoing investigation of the subject property,[7] and this request seeks the records in the investigatory file.[8] As such, the County appropriately invoked the investigatory files exemption in response to this request, and no violation of FOIA is found.

CONCLUSION

For the foregoing reasons, we conclude that the County did not violate FOIA by declining access to the requested records.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

J. Everett Moore, Jr., Sussex County Attorney

[1] Petition.
[2] Response.
[3] 29 Del. C. § 10003(a).
[4] 29 Del. C. § 10005(c).
[5] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[6] Del. Op. Att'y Gen. 22-IB36, 2022 WL 8067856, at *2 (Sept. 30, 2022).
[7] The Sussex County Planning and Zoning Department has law enforcement responsibilities associated with County zoning. Sussex Cty. C. § 115-228, 229.
[8] Response.