Can a Delaware town redact ICE's emails about a 287(g) agreement based on ICE's request and an email warning?

Plain-English summary

The ACLU of Delaware requested communications about Camden's 287(g) agreement with Immigration and Customs Enforcement (ICE), including emails between the Town and ICE. Camden produced emails it had sent to ICE but redacted "anything from the ICE side of the emails." The police chief said ICE had asked Camden to withhold the communications and directed the ACLU to ICE's FOIA office instead.

The Town also pointed to an ICE email signature marked "UNCLASSIFIED/FOR OFFICIAL USE ONLY" and claimed two Delaware safety-information exemptions. Its sworn response said the emails involved emergency situations and criminal acts in immigration apprehension activities and that release would have a "substantial likelihood of threatening public safety."

The AG found a FOIA violation because Camden had not carried its burden to justify the redactions. ICE's verbal request and the signature warning did not, by themselves, give the Town a basis to withhold records under Delaware FOIA. The AG found no support that the records concerned the medical, storage, or laboratory facilities covered by one cited exemption. For the other safety provisions, Camden's sworn statements did not address all the required elements or supply the relevant facts.

The AG recommended that Camden review its position and, if appropriate under FOIA, supplement its response with information, responses, or records. The opinion does not order the entire ICE side of the thread released or foreclose a redaction supported by additional facts.

What this means for you

If you request a Delaware town's communications with ICE

An ICE request to withhold and a handling warning in an email signature did not justify Camden's redactions by themselves. The Town also had to support any Delaware FOIA exemption it invoked. The AG found its safety showing inadequate and recommended a review and possible supplement, rather than a categorical release of every ICE email.

If you respond to a FOIA request involving federal emails

The opinion says to identify a Delaware FOIA basis for withholding. Camden invoked safety provisions but supplied only broad descriptions of immigration apprehension and public-safety concerns. The AG found those assertions insufficient for the cited provisions. The decision does not say all emails received from ICE are public or that none can be exempt.

If you work with 287(g) records

The ACLU requested communications about both implementation and rescission of Camden's agreement. According to the petition, Camden had withdrawn from the agreement on May 6, 2025. The AG's ruling addresses the Town's proof for its redactions, not the merits of the agreement or the effect of withdrawal on records access.

Common questions

Did the AG rule that Camden must release every redacted ICE email?

No. It found the Town had not demonstrated that the redactions were proper. The recommended next step was to review its position and supplement the response if appropriate under FOIA. Additional facts might support a particular exemption; this opinion did not decide that question.

Is an ICE "FOR OFFICIAL USE ONLY" warning enough to withhold an email?

Not by itself in this petition. The AG said the warning and ICE's verbal objection were insufficient without a basis under Delaware FOIA. It did not decide any separate question about federal handling rules.

Why did the medical-facilities safety provision fail?

The AG found no basis in the record that the withheld communications concerned the medical facilities, storage facilities, or laboratories described by the provision Camden cited.

What was missing from Camden's other safety showing?

The opinion quotes Vanella v. Duran for four elements under one safety provision, including danger to life or physical safety, a connection to preventing or responding to criminal acts, a substantial likelihood of threatening public safety, and specified vulnerability assessments or response plans. The federal-information alternative requires the first three elements and a different fourth element. The AG found Camden's sworn statements did not fully address the elements or provide relevant factual support.

Did the AG decide whether federal FOIA itself exempts these emails under Delaware law?

No. The ACLU argued about that possibility, but the Town relied on ICE's request, the email signature, and Delaware's safety provisions. The AG resolved whether those grounds were adequately supported.

Background and statutory framework

Under 29 Del. C. § 10005(c), a public body bears the burden of justifying its denial of records. Camden's police chief submitted a sworn response, but the AG found it lacked specific support for the safety exemptions. The quoted Vanella v. Duran passage supplied the elements for the safety exception the Town invoked. The AG's conclusion was that Camden had failed to show its redactions were appropriate on this record.

Citations

• 29 Del. C. § 10005(c) (public body's burden)
• 29 Del. C. § 10002(o)(17)(a)(4) (facilities-related safety records)
• 29 Del. C. § 10002(o)(17)(a)(5) (safety provisions invoked by Camden)
• Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024) (safety-exception elements)

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