Can a Delaware county refuse to release fire department radio recordings if those recordings have been subpoenaed by the State Fire Commission?

Plain-English summary

Reporter Shannon McNaught (Dover Post) asked Sussex County for any audio recordings or related documents involving Lewes Fire Department radio communications during a roughly one-hour window on the evening of August 19, 2024. Sussex County said no, citing FOIA's exemption for investigatory files compiled for civil or criminal law-enforcement purposes. McNaught filed a petition arguing that any related investigation was now closed and that the records were not, in any event, compiled for law-enforcement purposes.

The AG sided with the County. The Director of Sussex County's Department of Public Safety swore in an affidavit that he had received a subpoena from the State Fire Commission's Investigation Division asking for radio audio for an incident at "approximately 1750 hours" on August 19, 2024 involving Lewes Fire Department. He attached the subpoena, which carried an investigation identification number. That subpoena converted the audio records, in the AG's view, into part of the Fire Commission's investigatory file. Section 10002(o)(3) of FOIA exempts investigatory files compiled for civil or criminal law-enforcement purposes, and the AG read "law-enforcement" broadly enough to include the Fire Commission's investigation.

The AG also rejected the argument that closure of an investigation cancels the exemption. Citing News-Journal Co. v. Billingsley (Del. Ch. 1980), the AG reaffirmed that the investigatory files exemption "attaches as soon as a public body is made aware of a potential issue" and survives after the investigation ends.

What this means for you

If you are a journalist or researcher in Delaware

The opinion holds that audio records subpoenaed by a state investigative body can fall within FOIA's investigatory-files exemption. The Lewes Fire radio recordings became part of the State Fire Commission Investigation Division's file once the Commission issued a subpoena (bearing an investigation identification number) for them, and § 10002(o)(3) exempts "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes." The opinion also holds that it is "immaterial whether the investigation has since closed": under News-Journal Co. v. Billingsley, the exemption "attaches as soon as a public body is made aware of a potential issue" and survives after the investigation is completed.

If you are a county or fire-service administrator

The opinion holds that the County met its burden of proof under § 10005(c) through a sworn affidavit from the Director of the Department of Public Safety, who attested that he received the Fire Commission subpoena for the August 19, 2024 audio and attached the subpoena and the email. Under Judicial Watch v. Univ. of Del., the opinion treats a sworn statement as the way to carry that burden; the affidavit with the attached subpoena was sufficient here.

If you are a Sussex or Lewes resident asking about the underlying incident

The opinion holds only that the County did not violate FOIA by denying the records. The § 10005 petition process reviews FOIA compliance, not the merits of the underlying fire incident, and the opinion does not address any other avenue for raising concerns about the incident.

Common questions

Q: Doesn't FOIA presume records are public unless an exemption clearly applies?
A: The opinion holds the public body carries the burden of proof, and that a sworn affidavit identifying the exemption and the operative facts (here, a subpoena tied to a numbered State Fire Commission investigation) was sufficient to support the County's denial.

Q: What if the fire incident itself was newsworthy and there is no criminal case?
A: The opinion holds that § 10002(o)(3) covers "both civil and criminal law-enforcement files," which it found "would encompass the Delaware State Fire Commission's investigation." The exemption is not limited to police criminal cases.

Q: Does the exemption end when the investigation ends?
A: No. The opinion holds it is "immaterial whether the investigation has since closed," citing News-Journal Co. v. Billingsley, which held the investigatory-files exemption attaches when a public body is made aware of a potential issue and survives after the investigation is completed.

Q: I asked for the subpoena itself. Can I get that?
A: The opinion does not decide that. It notes the County attached the subpoena to its affidavit to support the exemption; it did not rule on whether the subpoena itself is separately accessible.

Q: Can I challenge the AG's determination?
A: AG opinions are persuasive authority, not binding. The opinion resolves only whether a FOIA violation occurred under the § 10005 petition process; it does not address any further review of its determination.

Background and statutory framework

Delaware FOIA's investigatory files exemption. The Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008, embodies a strong presumption of public access. Section 10002(o) lists specific carve-outs from the definition of "public record." Subsection (o)(3) excludes "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes." Delaware courts and the AG have read this as a categorical, not balancing, exemption: once a record is part of such a file, it is not "public" under FOIA, regardless of public interest in the underlying incident.

Why subpoenaed audio counts. In the opinion's analysis, the requested Lewes Fire radio audio became part of the Delaware State Fire Commission Investigation Division's investigatory file when the Commission subpoenaed it. The subpoena, which included an investigation identification number, was the evidence the County offered (by affidavit) that the records fell within the "files compiled for civil or criminal law-enforcement purposes" exemption.

Burden of proof and sworn affidavits. Section 10005(c) places the burden on the public body. After Judicial Watch v. Univ. of Del., 267 A.3d 996, 1011-12 (Del. 2021), a public body opposing a FOIA petition must support contested factual claims under oath, by someone with personal knowledge. The County's affidavit from the Director of the Department of Public Safety, with the subpoena attached, satisfied that requirement here.

Survival of the exemption after closure. News-Journal Co. v. Billingsley, 1980 WL 3043, at *2-3 (Del. Ch. Nov. 20, 1980), held that the investigatory files exemption "attaches as soon as a public body is made aware of a potential issue and . . . survives after the investigation is completed." The petitioner here argued the investigation had closed; the opinion held that, under Billingsley, that does not matter for purposes of the exemption.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002 (Definitions and exemptions, including investigatory files)
• 29 Del. C. § 10005 (Enforcement, burden of proof, citizen petition right)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/17/24-ib43-10-17-2024-foia-opinion-letter-to-shannon-mcnaught-re-sussex-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-24-IB43.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. 24-IB43
October 17, 2024

VIA EMAIL
Shannon 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 this
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. As discussed more fully herein, we
determine that the County did not violate FOIA by denying access to the records you requested.

BACKGROUND
On September 9, 2024, you submitted a FOIA request to Sussex County for "any audio
recordings and/or documents related to audio records that include Lewes Fire Department
(including fire police) radio communications from between 5 and 6 p.m. [on] Aug 19, 2024." The
County provided a response on September 17, 2024, stating that the records requested are not
public documents as they are investigatory files compiled for civil or criminal law-enforcement
purposes.
This Petition followed, alleging that the County violated FOIA by denying access to any
responsive documents. You contend that the Fire Commission's investigation has since been
closed and any files are no longer part of any investigation. You also allege that the requested
information was not compiled for law enforcement purposes.

1

The County, through its legal counsel, replied to the Petition and enclosed the affidavit of
the Director of the Department of Public Safety for Sussex County ("Response"). The Director
attests that he received a subpoena from the Fire Prevention Commission of the State of Delaware
seeking audio recording and radio identified for an incident that took place on or about August 19,
2024 at approximately 1750 hours involving Lewes Fire Department. In addition, the email and
subpoena were attached to the affidavit.

DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to
justify its denial of access to records.1 In certain circumstances, a sworn affidavit may be required
to meet that burden.2 We find that the County sufficiently supported that its denial of access to
the requested records was appropriate.
The County, through sworn affidavit, stated that the requested audio records were subject
to a subpoena of the Delaware State Fire Commission, Investigation Division.3 The County
provided a copy of the subpoena as an attachment which includes an investigation identification
number.4 Your FOIA request is for audio records that are part of the Delaware State Fire
Commission's investigatory file as evidenced by the subpoena. The investigatory files exemption
includes both civil and criminal law-enforcement files which would encompass the Delaware State
Fire Commission's investigation.5 It is immaterial whether the investigation has since closed.6 As
such, the County appropriately invoked the investigatory files exemption and no violation of FOIA
is found.

CONCLUSION
For the reasons set forth above, we conclude that the County did not violate FOIA by
denying access to the requested records.
1

29 Del. C. § 10005(c).

2

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

3

Response, Affidavit.

4

Response, Attachment.

29 Del. C. § 10002(o)(3) ("[i]nvestigatory files compiled for civil or criminal lawenforcement purposes") (emphasis added).
5

6

The investigatory files exemption continues to apply after an investigation is closed. NewsJournal 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).
2

Very truly yours,
/s/ Victoria E. Groff

Victoria E. Groff
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

J. Everett Moore, Jr., County Attorney