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
This opinion is a useful map of how FOIA tends to play out when you ask for first-responder audio. Two practical points:
- A subpoena from a state investigative agency can convert otherwise-public radio audio into an exempt investigatory file. The records did not start out as criminal-case material. They became investigatory the moment the Fire Commission opened an inquiry and demanded them. Your FOIA path narrows accordingly.
- "The investigation has closed" is not, by itself, a winning argument. Delaware courts and the AG have held since the 1980 News-Journal case that the exemption survives the close of the case. If you want closed-case material, you usually need a different theory (waiver, prior public release, or non-investigatory chain of custody).
If radio audio is your goal, alternative routes worth trying: the Delaware State Fire Prevention Commission itself once an investigation is fully resolved, or the Delaware Online Checkbook / open-data feeds that may hold dispatch logs for the same incident. Also consider the underlying CAD (computer-aided dispatch) records held by the 9-1-1 center; sometimes those are not characterized as investigatory if no investigation was actually opened.
If you are a county or fire-service administrator
When you receive a FOIA request that touches on records under subpoena, the affidavit pattern Sussex County used is the safe one:
- The official with personal knowledge swears that the records exist or do not exist and explains why they fall within an exemption.
- The subpoena (or other investigatory-trigger document) is attached.
- The response is filed promptly with the AG, ideally with the same affidavit you would offer in a court proceeding.
Section 10005(c) puts the burden of proof on the public body, and Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), tells you that proof needs to come from sworn statements by people with personal knowledge. Unsworn legal argument from counsel alone is not enough.
If you are a Sussex or Lewes resident asking about the underlying incident
The AG's office reviews FOIA compliance, not the merits of the underlying matter. If you have safety or accountability concerns about an incident, the Fire Prevention Commission has a separate complaint channel, and the Delaware Department of Justice Civil Rights and Public Trust Division (302-577-5400) handles concerns about official conduct. The AG opinion process under § 10005 is purely a records-access mechanism.
Common questions
Q: Doesn't FOIA presume records are public unless an exemption clearly applies?
A: Yes, but the public body only has to meet its burden of proof, and a sworn affidavit identifying the specific exemption and the operative facts (here, an active subpoena tied to a numbered investigation) is usually enough. The petitioner does not get to look behind the affidavit unless something on the face of it is implausible.
Q: What if the fire incident itself was newsworthy and there is no criminal case?
A: Section 10002(o)(3) covers civil and criminal law-enforcement investigations. A regulatory body like the State Fire Commission counts. The exemption is not limited to police criminal cases.
Q: Does the exemption end when the investigation ends?
A: No. News-Journal Co. v. Billingsley (Del. Ch. 1980) and prior AG opinions read the exemption as attaching when the investigation begins and continuing afterward. Otherwise public bodies would have to release internal investigatory work as soon as an inquiry was administratively closed, which Delaware case law has not allowed.
Q: I asked for the subpoena itself. Can I get that?
A: Possibly, depending on the issuing body. The County in this case attached the subpoena to its affidavit to support the exemption. The State Fire Commission may be able to release it directly under its own records process, depending on whether disclosure would compromise the investigation.
Q: I am a party or witness to the incident. Do I have a different right of access?
A: You may. Witness statements, your own recorded interactions, and records you provided are sometimes accessible through the investigating agency directly, or through discovery if litigation follows. FOIA is the wrong tool for that purpose.
Q: Can I challenge the AG's determination?
A: Yes. Section 10005(b) lets a citizen file an action in Superior Court within 60 days of an alleged violation. The AG opinion is persuasive but not the final word on whether a violation occurred.
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. The Sussex County Department of Public Safety did not generate the radio recordings as part of its own investigation. The Lewes Fire Department, which is dispatched through the County's 9-1-1 center, generated them in real time. They became investigatory when the State Fire Commission's Investigation Division opened a numbered case and subpoenaed the audio. The subpoena (with its case number) converted the recordings, in the AG's analysis, into part of the Commission's "files compiled for civil or criminal law-enforcement purposes."
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." That holding has been cited consistently by the AG over four decades. The petitioner here argued the investigation had closed; 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