Ezel / AG Opinions / DE
DE 25-IB47 2025-09-29

If I called the police to report harassment and want to see the report I generated as a victim, can I get it through Delaware FOIA?

Short answer: No, even as the alleged victim. Section 10002(o)(3) categorically exempts police reports as investigatory files. Michael Ryan's request for a copy of his October 2024 harassment-complaint report was lawfully denied by DSP. The investigatory files exemption does not include a victim or first-party access exception. FOIA is not a personal-records access right; it provides only what is generally available to the public, which categorically excludes police reports. Other paths (court records, victim-rights advocates, civil discovery) may apply.
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 AG opinions are persuasive authority but not binding precedent.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.

Plain-English summary

Michael Ryan called the Delaware State Police in October 2024 to report someone harassing him. The officer took the complaint and created a report. In August 2025, Ryan filed a FOIA request for the report, identifying the officer and the report number. He learned that he had not been listed as a victim on the report and wanted to review it.

DSP denied the request under the investigatory files exemption, 29 Del. C. § 10002(o)(3). Ryan petitioned, asking the AG for an exception based on his status as the person who made the complaint and (he argued) the actual victim.

The AG denied the petition. The investigatory files exemption is categorical and has no first-party or victim exception. Police reports are within the exemption regardless of who is requesting. The AG cited Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508 (Del. Super. 1999), which held that records of criminal investigations are "categorically excluded from the scope of FOIA."

The AG also explained that FOIA does not create a personal-records access right. It is a public-records statute, providing what is generally available to citizens. If the records are not public for the general citizen, they are not public for Ryan either. Other access paths exist (court records, victim-rights laws, civil discovery in private litigation) but they are outside FOIA.

The footnote citing 18-IB13 captures the rule: "the propriety of a request seeking records about the requesting party is outside the scope of the FOIA statute, as 'any such entitlement would have no basis in Delaware's FOIA and is therefore beyond the scope of our role in this context.'"

What this means for you

If you are a crime victim trying to get your police report

FOIA will not get you the report. The exemption is categorical. Alternative paths:

  1. Talk to the investigating officer or police department directly. Police departments often share basic case information with victims as a matter of practice, even though FOIA does not require it. Call the officer who took your report or the records office of the police department. Ask what information they can share with you as the complainant.

  2. Court records, if charges were filed. If the alleged perpetrator was charged, the case file in court (Justice of the Peace Court, Court of Common Pleas, or Superior Court) is public.

  3. Victim notification systems. Delaware has a victim-notification system (VINELink and similar) that can provide updates on case status, defendant custody status, and similar information. That is not FOIA-driven.

  4. Civil litigation. If you sue the alleged harasser civilly, you can subpoena the police department for the report through the court process. Civil discovery rules (not FOIA) govern.

  5. Victim advocacy organizations. Groups like the Delaware Victims' Compensation Assistance Program may help you understand your rights and access information.

If you are wondering why FOIA does not help victims

FOIA is a public records law, not a personal records access law. The law assumes records are either public (available to anyone) or not (available to no one through FOIA). It does not have categories like "available only to the subject of the records" or "available only to victims." Other statutes do that work (HIPAA for medical records, FERPA for education records), but the police-report category does not have an analog.

The policy rationale for keeping investigatory files exempt is to protect the integrity of investigations and to encourage reporting. Witnesses and informants might not come forward if their statements could be released through FOIA. Even after the investigation closes, the exemption survives.

If you are reporting a crime to the police

You generally will not get a copy of the report through FOIA. If you want documentation of the incident for your own records:

  1. Get a case number and report number at the time of the incident.
  2. Ask the officer for any documentation they can share with you informally.
  3. If the matter goes to court, request the case file from the court.
  4. Keep your own contemporaneous notes about what happened, what you reported, and to whom.

If you are a Delaware police records officer

The categorical exemption applies even to first-party requesters. Deny under § 10002(o)(3), citing the consistent line of cases (Gannett, Billingsley, Atamian) and AG opinions. If your department's policy allows informal sharing with victims (some do), document that as separate from the FOIA process.

If you are a victim advocate or attorney

Help your clients understand the FOIA limit early. Avoid setting an expectation that the police report can be obtained through FOIA. Direct clients to:
- The investigating officer for informal information sharing.
- Court records if charges are filed.
- Civil discovery if litigation is initiated.
- Victim-rights statutes for specific rights (notification, compensation, certain access).

Background and statutory framework

29 Del. C. § 10002(o)(3) exempts investigatory files compiled for civil or criminal law-enforcement purposes. The exemption is categorical: it removes the records from the FOIA "public record" definition entirely.

Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508 (Del. Super. 1999), aff'd 765 A.2d 951 (Del. 2000), held that "records of criminal investigations are categorically excluded from the scope of FOIA." That includes police reports.

Atamian v. Bahar, 2002 WL 264533 (Del. Super. Feb. 22, 2002), reinforced the categorical reading. AG opinion 21-IB07 (Mar. 24, 2021) confirmed police reports are within the exemption.

News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), holds the exemption attaches at first awareness and survives investigation closure.

The first-party / victim status question was addressed in 18-IB13 (Mar. 6, 2018): "the propriety of a request seeking records about the requesting party is outside the scope of the FOIA statute, as 'any such entitlement would have no basis in Delaware's FOIA and is therefore beyond the scope of our role in this context.'" FOIA is jurisdictionally about public records access, not about personal records.

Common questions

If I called the police, isn't the report mine in some sense?

You generated the call, but the resulting report is a record of the police department's investigation. FOIA exempts investigatory records regardless of who initiated the underlying incident. The report belongs to DSP for FOIA purposes, and the FOIA exemption applies.

What if the report is wrong or incomplete?

You believe you should be listed as a victim but were not. You may have remedies through:
- Direct communication with the investigating officer or supervisor.
- A formal request to update or correct the record (some departments accept these).
- A civil rights / due process claim if the inaccurate report harms you in some legal proceeding.
- Court intervention if charges arise from the report and the inaccuracy is material.

None of those are FOIA paths, but the substantive right to accurate police records may exist outside FOIA.

Can I get the report by suing someone civilly?

Yes, indirectly. If you sue the alleged harasser civilly, you can subpoena the police department for the report through court rules. Civil discovery is broader than FOIA in many ways and is not limited by § 10002(o)(3). Keep in mind privilege and protective orders may still apply.

Are there any FOIA exceptions for victims?

Not in Delaware FOIA. Some other states have specific provisions for victim access to certain records (e.g., domestic violence protection order petitions, restraining order applications). Delaware's victim-rights laws are in Title 11 (Crimes and Criminal Procedure) of the Delaware Code, separate from FOIA. They provide some access rights but not general FOIA-style access to police reports.

What if I am the subject of a closed investigation?

The exemption survives investigation closure. So even if the investigation was opened, conducted, and closed without charges, the records remain exempt under § 10002(o)(3). The Billingsley rule on survival of the exemption applies categorically.

What about expungement?

Delaware has expungement procedures for certain criminal records, primarily focused on protecting people from the lasting effects of arrests or charges that did not lead to conviction. Expungement is governed by separate statutes (11 Del. C. ch. 43) and is not a FOIA tool. If your information is in police records that you want sealed, consult a Delaware criminal defense attorney about expungement options.

Can I get information about whether the investigation is still pending?

Police departments often share basic case-status information with complainants as a matter of practice. Call the officer assigned to your case or the department's records office. Whether they will share information depends on department policy, the stage of the investigation, and other factors. This is informal access, not FOIA-driven.

What if the alleged harasser was charged and the case is ongoing?

Once charges are filed, the court case becomes public. The complaint, charging documents, motions, and proceedings are part of the public court record. The original police report remains exempt under FOIA at DSP, but it may be quoted or attached to court filings, in which case the court-filed version is accessible.

What about the federal FOIA?

Federal FOIA applies to federal agencies. State-held records are governed by state law. So federal FOIA does not help with a DSP report. (If the matter involved a federal agency like the FBI, federal FOIA would apply to the federal agency's copy, with similar but distinct exemptions under 5 U.S.C. § 552(b)(7).)

Citations

  • Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(3) (investigatory files exemption); § 10003(a) (right of access); § 10005(c) (burden of proof).
  • 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); Gannett Co. v. Del. Crim. Justice Info. Sys., 768 A.2d 508 (Del. Super. 1999); Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985); Atamian v. Bahar, 2002 WL 264533 (Del. Super. Feb. 22, 2002).
  • Prior AG opinions: 21-IB07 (Mar. 24, 2021); 18-IB13 (Mar. 6, 2018).

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB47
September 29, 2025

VIA EMAIL
Michael Ryan
[email protected]

RE: FOIA Petition Regarding the Delaware State Police, Department of Safety and Homeland Security

Dear Mr. Ryan:

We write in response to your correspondence alleging that the Delaware State Police, Department of Safety and Homeland Security ("DSP") 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the DSP did not violate FOIA by denying access to the requested record.

BACKGROUND

On August 1, 2025, you submitted a FOIA request to the DSP for "a copy of the report from a complaint [you] filed against someone who has been harassing [you]." The request identified the officer who took the complaint and the report number. On August 4, 2025, the DSP denied access to this report pursuant to the exemption for investigatory files for criminal law enforcement purposes under 29 Del. C. § 10002(o)(3). This Petition followed.

In the Petition, you assert that you made a complaint in October 2024 over the telephone to the officer and although you are a victim, you have learned you were not listed as a victim on this report. You have not had the opportunity to review the report, but you believe that as a victim, you should be permitted to view the report. On this basis, you request an exception to the investigatory files exemption.

On September 9, 2025, the DSP, through its legal counsel, replied to the Petition ("Response"). The DSP argues that it properly cited the exemption for investigatory records for criminal law enforcement purposes under 29 Del. C. § 10002(o)(3), as records of law enforcement incidents, including police reports, fall under this exemption. The DSP states that it cannot make an exception, as you are not listed as a victim on the report.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden.

In its response to this request for a police report documenting a verbal complaint, the DSP asserted Section 10002(o)(3), 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 records of criminal investigations are "categorically excluded from the scope of FOIA." We determine that the DSP's denial of access to this report under the investigatory files exemption is proper, as police reports are part of the investigatory file. The investigatory files exemption attaches as soon as a public body is made aware of a potential issue, and it does not contain an exception for these circumstances.

CONCLUSION

For the foregoing reasons, we conclude that the DSP did not violate FOIA by denying access to the requested report.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Joseph C. Handlon, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General

[Footnote 9]: FOIA does not prescribe whether a person is entitled to records that pertain to that person; FOIA merely mandates what records are public and must be made available to Delaware citizens through the FOIA request process. See Del. Op. Att'y Gen. 18-IB13, 2018 WL 1405829, at *1 (Mar. 6, 2018) (finding that the propriety of a request seeking records about the requesting party is outside the scope of the FOIA statute, as "any such entitlement would have no basis in Delaware's FOIA and is therefore beyond the scope of our role in this context.").