Can a Delaware town hide ICE's side of the email thread on its 287(g) immigration enforcement agreement just because ICE asks them to?
Plain-English summary
The ACLU of Delaware filed a FOIA request with the Town of Camden in May 2025 for written communications about Camden's 287(g) agreement with U.S. Immigration and Customs Enforcement. Section 287(g) of the Immigration and Nationality Act lets ICE delegate certain immigration enforcement powers to local law enforcement agencies. The ACLU was tracking communications among Camden's police, council, and mayor about the program; communications with ICE; communications with Delaware's Governor and Attorney General; and the agreements themselves.
The Town's police chief said Camden had withdrawn from the agreement on May 6, 2025, then asked the ACLU if it still wanted the records. ACLU said yes. The chief consulted ICE; ICE asked Camden to withhold the records and told the ACLU to file with ICE's federal FOIA office instead. Camden then produced the emails from the Town to ICE but redacted "anything from the ICE side of the emails." Half the conversation.
The ACLU petitioned. Its arguments: (1) all the emails are Camden's records once received or sent, regardless of who else is on them; (2) ICE's request to withhold is not a recognized exemption; (3) ICE's email signature labeling things "For Official Use Only" is not a statute under § 10002(o)(6); (4) federal FOIA is also not a "statute" that controls Delaware FOIA.
Camden's response leaned on two grounds:
1. ICE's verbal request and the email signature stating "UNCLASSIFIED/FOR OFFICIAL USE ONLY" with handling restrictions under "DHS policy."
2. The safety-information exemption, § 10002(o)(17)(a)(4) (medical/storage/lab facility records) and (5) (specific and unique vulnerability assessments or response/deployment plans tied to public-safety threats).
The Deputy AG ruled for the ACLU. Two specific holdings:
ICE's preferences are not a FOIA exemption. A federal agency's request to withhold and a "FOR OFFICIAL USE ONLY" signature do not, by themselves, create a Delaware FOIA exemption. The Town must point to an exemption in the statute.
The safety-information exemption was not adequately supported. Section 10002(o)(17)(a)(4) covers medical facilities, storage facilities, or laboratories. There was no factual basis to think the redacted ICE emails fit that category. Section 10002(o)(17)(a)(5) requires four elements per the Superior Court's reading in Vanella v. Duran: (1) disclosure could endanger life or physical safety; (2) the records were created or maintained to prevent, mitigate, or respond to criminal acts; (3) disclosure would have a substantial likelihood of threatening public safety; and (4) the records fit within "specific and unique" vulnerability assessments or response/deployment plans. The Town's affidavit said the records pertain to "responding to emergency situations and criminal acts in immigration apprehension activities" and release would have a "substantial likelihood of threatening public safety." That tracked the statutory language but did not lay specific factual ground for the four-prong test. Violation. Recommended remediation: review the position and supplement the response.
What this means for you
If you advocate for immigrant communities or transparency on local police-ICE collaboration
This opinion is a real win. Two takeaways:
- Local FOIA reaches both sides of police-to-ICE conversations. Camden cannot hide the ICE half just because ICE asked them to. Other Delaware municipalities with 287(g) agreements (and there are several) face the same rule.
- Push the four-prong safety test. When a municipality invokes § 10002(o)(17), demand specific facts on each element. Generic "release would threaten public safety" claims fail under Vanella v. Duran.
If you're a Delaware municipality with an ICE relationship (current or past)
Two tactical points: (1) ICE's correspondence is your record once it lands in your email; you must apply Delaware FOIA to it. (2) If you genuinely believe a record falls within the safety exception, build the affidavit around the four Vanella elements with specific factual statements. A generic invocation will fail.
If you're a federal agency exchanging email with Delaware municipalities
Including a "FOR OFFICIAL USE ONLY" signature does not create a Delaware FOIA exemption for the recipient. If you want to keep federal information out of Delaware FOIA, the Town has to find a substantive Delaware exemption to invoke (commercial information, attorney-client privilege, safety exception with proof, etc.). Federal agency preferences alone do not control.
If you're a journalist on the immigration beat in Delaware
This opinion gives you traction on records about local police-ICE collaboration. Two recurring themes: (1) Local FOIA reaches more than federal FOIA in this space, and federal agencies cannot block by request. (2) Even after a 287(g) agreement is rescinded, the prior records remain reachable. The historical record matters.
Common questions
Q: What is 287(g)?
A: Section 287(g) of the Immigration and Nationality Act allows the federal government to delegate certain immigration enforcement powers to state and local law enforcement officers. There are multiple program models (jail enforcement, task force, warrant service). Camden had a 287(g) agreement and withdrew from it on May 6, 2025.
Q: What does "FOR OFFICIAL USE ONLY" actually mean?
A: It is a federal information-handling label, not a classification. It is roughly the lowest tier of "controlled unclassified information" in federal practice. The label has internal federal handling implications but does not, by itself, create a state-law FOIA exemption.
Q: Is federal FOIA a "statute" under Delaware's § 10002(o)(6)?
A: The opinion does not directly decide this question. The ACLU argued no; the Town did not formally invoke § 10002(o)(6) on the federal-FOIA basis. The AG ruled on the safety exception instead. So the federal-FOIA-as-statute question is open in Delaware.
Q: What's the Vanella v. Duran four-prong test in plain English?
A: For the safety exception under § 10002(o)(17)(a)(5)(A) to apply: (1) the record's disclosure could endanger someone's life or physical safety; (2) the record was created to prevent, mitigate, or respond to criminal acts; (3) disclosure would have a substantial likelihood of threatening public safety; and (4) the record contains "specific and unique" vulnerability assessments or response/deployment plans. All four must be true with specific facts.
Q: What's different about subsection (a)(5)(B)?
A: That subsection covers federal information that is shared with state/local agencies and is not subject to public disclosure under federal law. It still requires the first three prongs of the safety test. Camden invoked it but did not specifically tie ICE-shared information to the four elements.
Q: Can I FOIA federal ICE records directly?
A: Yes, through the federal FOIA process. Federal FOIA has its own procedures, exemptions, and timelines. It is generally slower than state FOIA but reaches federal records that state FOIA does not.
Citations
- 29 Del. C. § 10002(o)(6), common-law exemptions
- 29 Del. C. § 10002(o)(17)(a)(4), medical, storage, laboratory facility records
- 29 Del. C. § 10002(o)(17)(a)(5), safety/vulnerability assessment records
- 29 Del. C. § 10002(o)(17)(5)(B), federal-shared information not publicly disclosable under federal law
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10005(c): burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024), four-element test for safety exception
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/06/26/25-ib33-6-26-25-foia-opinion-letter-to-joseph-m-donahue-jr-and-keith-redmond-re-town-of-blades/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/06/Attorney-General-Opinion-No.-25-IB33.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
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. 25-IB33
June 26, 2025
VIA EMAIL
Jared Silberglied
American Civil Liberties Union of Delaware
[email protected]
RE:
FOIA Petition Regarding the Town of Camden
Dear Mr. Silberglied:
We write in response to your correspondence, alleging that the Town of Camden 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 of whether a
violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine
that the Town violated FOIA by failing to meet its burden to demonstrate that the redacted
communications were appropriately withheld under FOIA.
BACKGROUND
On May 6, 2025, you submitted a FOIA request to the Town of Camden seeking
"information regarding the Town of Camden's 287(g) agreement with the United States
Department of Homeland Security/Immigration and Customs Enforcement."1 More specifically,
this request sought the following:
1.
1
Any and all written communications (i.e. letters, emails, calendar
invitations, text messages, etc.) between the Town of Camden Police
Petition, Ex. 1.
1
2.
3.
4.
Department, City Council, Mayor's Office, and any other relevant
parties (collectively "Camden") regarding the federal 287(g)
immigration program. This includes any communications relating to
both the potential implementation of and revocation of any 287(g)
programs.
Any and all written communications between Camden and the
United States Department of Homeland Security and/or
Immigration and Customs Enforcement regarding the federal 287(g)
immigration program. This includes any communications relating to
both the potential implementation of and revocation of any 287(g)
programs.
Any and all written communications between Camden and the
Delaware Governor's and/or Attorney General's Office regarding
the federal 287(g) immigration program. This includes any
communications relating to both the potential implementation of and
revocation of any 287(g) programs.
Any and all agreements between Camden and the federal
government regarding the 287(g) immigration program including
agreements that were previously in affect and have subsequently
been rescinded.2
In the Petition, you state that your request largely concerned the emails between
Immigration and Customs Enforcement ("ICE") and the Town's police department regarding this
287(g) federal immigration program. You allege that the Town's police chief informed you that
the Town withdrew from the agreement on May 6, 2025 and asked if you were still interested in
the emails; you confirmed you were. The Town's police chief later informed you that he consulted
with ICE, who requested that the communications be withheld and that you instead file a request
with ICE's FOIA department. The Town subsequently responded to your request, disclosing
emails with ICE and redacting "anything from the ICE side of the emails."3 Thus, the production
included only emails from the Town to ICE and redacted ICE's emails to the Town.
This Petition followed, arguing that these redactions are improper. You assert that all the
emails must be disclosed, not half of the conversation. You state that these emails are retained or
received by the Town and therefore are part of their "public records," and there is no exemption
that permits withholding ICE's emails; ICE's request to withhold records does not overcome
FOIA's requirements. Even if the Town argues that Section 10002(o)(6), which excludes records
specifically exempted from disclosure by statute or common law, is applicable, you contend that
a general statement of confidentiality from a federal agency does not constitute a statute, nor does
the federal FOIA law constitute a "statute" under Section 10002(o)(6).
2
Id.
3
Petition, Ex. 4.
2
The Town, through its legal counsel, replied to this Petition ("Response") and enclosed the
affidavit of the police chief, attesting that the factual statements in the Response are true and
correct to the best of his knowledge. The Town alleges that the police department lacked the
authority to release these emails under Delaware's FOIA because of the verbal requests from ICE
to withhold the records and ICE's email signature. The signature stated that the communication
is "UNCLASSIFIED/FOR OFFICIAL USE ONLY," may be exempt under the federal FOIA
statute, is to be handled in accordance with the "DHS policy relating to FOUO information," and
"is not to be released to the public or other personnel who do not have a valid 'need to know'
without prior approval of an authorized DHS official."4 In addition, the Town asserts that these
communications are exempt under Section 10002(o)(17)(a)(4) and (5) because these emails pertain
to information about the 287(g) immigration program and involve "responding to emergency
situations and criminal acts in immigration apprehension activities of law enforcement" and the
release would have a "substantial likelihood of threatening public safety."5
DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to
justify its denial of access to its records.6 In certain circumstances, a sworn affidavit may be
required to meet that burden.7 In its Response, the Town contends that it lacked the authority to
release these communications due to the limitations in the email signature and ICE's verbal
objection to this disclosure. Without more, neither basis constitutes a sufficient rationale to
withhold records; the Town must identify a basis under the FOIA statute to withhold its records.
The Town also asserts that these records are exempt from disclosure under Section
10002(o)(17)(a)(4) and (5). Section 10002(o)(a)(17)(4) applies to "records prepared to prevent or
respond to emergency situations identifying or describing the name, location, pharmaceutical
cache, contents, capacity, equipment, physical features or capabilities of individual medical
facilities, storage facilities, or laboratories established, maintained or regulated by the State or any
of its political subdivisions." However, there is no basis in this record to support that the withheld
records pertain to "medical facilities, storage facilities, or laboratories." In addition, the Town
argues that Section 10002(o)(17)(a)(5) applies here, which has subsections (A) and (B). In Vanella
v. Duran, the Superior Court of Delaware examined the standard set by Section
10002(o)(17)(5)(A):
The Safety Exception, as DSP attempts to apply in this case, has more
components and sets a higher bar. Namely, relevant to Delaware Call's
4
Response.
5
Id.
6
29 Del. C. § 10005(c).
7
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
3
requests, the Safety Exception requires all of the of the following: (1)
disclosure of the records could endanger individual life or physical safety;
(2) the portions of the records at issue were created or maintained to prevent,
mitigate, or respond to criminal acts; (3) disclosure of the records would
have a substantial likelihood of threatening public safety; and (4) the records
fit within "specific and unique" vulnerability assessments or
response/deployment plans or are underlying data collected to facilitate
those assessments or plans.8
Similarly, to apply Section 10002(o)(17)(5)(B) in this instance, the Town must meet the
first three prongs above and for the fourth prong, show that these records are "not subject to public
disclosure under federal law that are shared by federal or international agencies and information
prepared from national security briefings provided to state or local government officials related to
domestic preparedness for criminal acts against United States citizens or targets."9 In its Response,
the Town asserts, under oath, that these emails contain information about the 287(g) immigration
program and involve "responding to emergency situations and criminal acts in immigration
apprehension activities of law enforcement" and the release would have a "substantial likelihood
of threatening public safety."10 As these assertions do not fully address, nor provide the relevant
factual support that these standards under Section 10002(o)(17)(5)(A) and (B) have been met, we
determine that the Town failed to meet its burden of proof to demonstrate that this exemption is
applicable. Accordingly, we find a violation for failing to demonstrate the redactions were
appropriate and recommend that the Town, in compliance with the timeframes set forth in Section
10003, review its position in light of this determination and if appropriate under FOIA, supplement
its response to your request, with additional information, responses, or records.
CONCLUSION
For the reasons set forth above, we conclude that the Town violated FOIA by failing to
meet its burden to demonstrate that the redacted communications were appropriately withheld
under FOIA.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
8
2024 WL 5201305, at *7 (Del. Super. Dec. 23, 2024) (emphasis in original).
9
29 Del. C. § 10002(o)(17)(5)(b).
10
Response.
4
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
Gregory A. Morris, Attorney for the Town of Camden
5