When a Delaware county uses code enforcement against a homeowner over multiple years, can the homeowner FOIA the search warrant materials, hearing recordings, and internal communications, or are those covered by the investigatory files exemption?
Plain-English summary
Steven Coleman, who has been on the receiving end of multi-year code enforcement at a New Castle County property, asked for five categories of records: the recording of an October 8, 2025 administrative hearing; written hearing minutes and notes; officer assignment and reassignment logs; search warrant applications and judicial orders; and internal code enforcement communications. The County initially produced some materials and inadvertently left out the hearing recording (later corrected), and withheld the search warrant materials under the investigatory files exemption.
Coleman argued the investigatory files exemption could not apply across years of routine code enforcement. The AG disagreed. Even multi-year code enforcement is "law enforcement" within the meaning of § 10002(o)(3) when notices of violation reference both civil and criminal authority. Search warrants exist precisely because criminal action might follow, so they fall within the exemption. The County's sworn affidavits were specific enough to satisfy the Judicial Watch framework, and the AG cleared the County of any FOIA violation.
The AG also reaffirmed two doctrinal points: a public body has no duty to answer questions or compile a list of withheld documents, and the missed hearing recording was rendered moot once the County produced it after discovering the inadvertent omission.
What this means for you
If you are a Delaware homeowner or property owner under code enforcement
The opinion holds that administrative records of a code enforcement matter (the hearing recording, hearing decision, and notices of violation that identify assigned officers) are producible, and the County met its burden by producing them after a search supported by sworn affidavits. It holds that search warrant applications, supporting affidavits, and related judicial orders fall within the investigatory-files exemption in § 10002(o)(3) because the County's notices of violation cite both civil and criminal law-enforcement authority, and that the exemption continues to apply after an investigation closes. It also holds that the County had no duty to answer the requester's questions or explain each withholding.
If you are a county code-enforcement officer or coordinator
The opinion describes how New Castle County met its burden: affidavits from the FOIA coordinator and from the technician who actually searched the Code Enforcement records, identifying the systems searched, what was found, and which records fell within the investigatory-files exemption. The AG found those sworn statements sufficient under the Judicial Watch standard, in contrast to the generalized affidavits rejected in the Superior Court's 2022 decision.
If you are a municipal attorney advising on code enforcement records
The opinion holds that code enforcement carrying criminal potential (notices stating noncompliance "may result in criminal charges") brings genuinely investigative material, such as search warrant records, within § 10002(o)(3), while routine administrative records about the same property remain producible. It treats the two categories differently and upholds the County's separate handling of them.
If you are a journalist or accountability advocate
The opinion holds that procedural and administrative code-enforcement records (hearing recordings, decisions, notices) are producible, while the content of warrant and investigative files for an individual matter is exempt under § 10002(o)(3).
Common questions
Q: Why does the investigatory files exemption apply to civil code enforcement?
A: Section 10002(o)(3) covers "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes." It is not limited to criminal cases. Code enforcement that the county pursues with civil and potential criminal authority falls within the exemption.
Q: Does the exemption apply even after the enforcement is over?
A: Yes. The Court of Chancery's News-Journal v. Billingsley (1980) and the line of AG opinions following it confirm the exemption continues to apply after an investigation is closed.
Q: Why did the County have to produce the hearing recording?
A: Because the recording was a public administrative hearing record, not an investigative one. The County had inadvertently omitted it from the production; once the County discovered the error, it produced the recording, which mooted that part of the petition.
Q: Why didn't the County have to provide a list of every withheld record with reasons?
A: Section 10003(h)(2) explicitly says the public body "shall not be required to provide an index, or any other compilation, as to each record or part of a record denied." So no privilege-style log is required, even though the public body must indicate the reason for any denial in its response.
Q: What about questions like "explain how this exemption applies"?
A: FOIA does not require a public body to answer questions or create records that don't exist. The opinion cites Vanella v. Duran (Del. Super. 2024) for that point: "FOIA requires only the production of existing records possessed or controlled by a public body."
Q: What if the County had not provided sworn affidavits?
A: The result would likely have been a finding of violation on the search-warrant exemption, requiring the County to either produce sworn statements or release records. The County here was careful to submit affidavits from both the FOIA coordinator and the actual searcher, which the AG found sufficient.
Background and statutory framework
The legal framework is the same as in many DE FOIA opinions: § 10005(c) puts the burden on the public body, and Judicial Watch v. Univ. of Del. (Del. 2021) requires sworn affidavits when the facts are disputed. Section 10002(o)(3) creates the investigatory files exemption, which the Delaware courts have read broadly.
What makes this opinion useful is its application to multi-year administrative enforcement. Coleman's argument was a creative one: surely a code enforcement matter spanning multiple years is not a single "investigation" within the meaning of the exemption, and surely the routine administrative pieces should not be sheltered by it. The AG agreed in part: the routine administrative pieces are producible. But the investigative-process pieces (search warrants, supporting affidavits) are still within the exemption.
The opinion also confirms three procedural points that come up repeatedly:
- No required privilege log. Section 10003(h)(2).
- No required answers to questions. Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024).
- Mootness when records are produced. Once the County produced the hearing recording (after discovering the inadvertent omission), that issue was moot.
Citations and references
Statutes:
- 29 Del. C. § 10002(o)(3) (investigatory files)
- 29 Del. C. § 10003 (FOIA access and response)
- 29 Del. C. § 10005 (FOIA enforcement)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022)
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)
- Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024)
Prior AG opinions:
- Del. Op. Att'y Gen. 25-IB14 (Feb. 28, 2025)
- Del. Op. Att'y Gen. 24-IB11 (Feb. 23, 2024)
Source
- Landing page: https://attorneygeneral.delaware.gov/2026/03/24/26-ib12-03-10-2026-foia-opinion-letter-to-steven-coleman-re-new-castle-county/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/03/Attorney-General-Opinion-No.-26-IB12.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 26-IB12
March 24, 2026
VIA EMAIL
Steven Coleman
[email protected]
RE: FOIA Petition Regarding New Castle County
Dear Mr. Coleman:
We write in response to your correspondence, alleging that New Castle 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 of 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 with respect to four items in the request, as alleged in the Petition. The claim related to the first item of the request is moot. The County met its burden of demonstrating it provided the records responsive to the second and third items after an adequate search and properly withheld the records sought in the fourth item pursuant to the investigatory files exemption.
BACKGROUND
On February 1, 2026, you submitted a FOIA request to New Castle County. The request sought five categories of records related to code enforcement activity at your property, as follows:
- The complete Zoom Video Recording of the administrative hearing conducted on October 8, 2025, including any audio, video, chat logs or meta data associated with that hearing.
- All written minutes, notes, summaries, or transcripts created by County staff in connection with the October 8, 2025 administrative hearing.
- Internal code enforcement assignment and reassignment records for [the property], including documents identifying:
a. The names of assigned officers,
b. Dates of assignment or reassignment,
c. The internal communications or logs reflecting changes in officer responsibility for this property. - All applications, affidavits, supporting documents, and judicial orders related to court ordered search warrants issued or executed in connection with the code enforcement activity of [the property], including materials prepared or submitted by County personnel.
- All internal communications (including emails, memoranda, or case notes) between code enforcement personnel relating to:
a. Compliance determinations;
b. Enforcement escalation;
c. Post-compliance site actions at [the property].
The County answered this request on February 17, 2026 and provided various responsive records. The County noted that certain documents were considered exempt as criminal investigative files under 29 Del. C. § 10002(o)(3). The County also noted that if any nonexempt portions of responsive records exist, they have been provided, after appropriate redaction. The same day, you replied, requesting confirmation of certain information and requesting explanations of certain withholdings. On the next day, you emailed reiterating your inquiries. You also pointed out the multi-year scope of the activity and requested the County explain how the investigatory file exemption could apply across ongoing enforcement activity, and you requested that the reasonably segregable, nonexempt materials be produced. This Petition followed.
In the Petition, you allege that the County violated FOIA by improperly applying the investigatory files exemption and failing to release segregable nonexempt records, including an October 8, 2025 administrative hearing recording; hearing minutes and summaries; officer assignment and reassignment logs; and warrant-related records following execution. You allege that the investigatory files exemption was improperly applied, because the County's enforcement actions spanned multiple years and was not a single, discrete criminal investigation; as such, you do not believe that the records can be categorically withheld as criminal investigatory files under Section 10002(o)(3). You state that the October 8, 2025 hearing was an administrative hearing and not a criminal investigation, and internal officer assignment and reassignment logs are administrative in nature. In addition, you argue that the reasonably segregable, nonexempt portions of warrant applications and supporting affidavits must be produced. You do not believe, based on the County's response, that a segregation was performed. You requested an explanation of how each withheld record meets the exemption, confirmation of whether any criminal investigation was active at the time each record was created, and release of all segregable, nonexempt portions of records.
On March 4, 2026, the County, through its legal counsel, responded to your Petition. For the first two items related to the hearing, the County states it inadvertently failed to send the hearing recording that had been prepared for the initial production. Upon discovering this, the County sent the recording to you, in addition to a copy of the hearing decision. The County states that having provided the recording, "[a]ll information requested and subject to FOIA about the October 8, 2025 hearing has been provided." For the third item regarding officers' internal assignment and reassignment records, the County states it does not possess such records, but it did provide each notice of violation or penalty, which contained officer names. Regarding the fourth item related to search warrants, the County states that these materials are exempt under Section 10002(o)(3) as the notices of violation make it plain the lack of compliance may result in criminal charges. Regarding your inquiries, the County notes it is not required by FOIA to answer questions or to create a list of withheld documents and the reasons for the withholdings.
The County enclosed two affidavits with its Response. The first was an affidavit from the acting FOIA coordinator for the Department, who attests to contacting the Code Enforcement division and requesting a search of all code enforcement records for this property. The FOIA coordinator attests to providing you with the records that were located but inadvertently failing to provide the hearing recording. To rectify this error, the coordinator attests to forwarding the recording and a copy of the hearing decision to you on February 26, 2026. The second affidavit is from the Customer Service and Information Technician, who conducted the review of the Code Enforcement division's records associated with the property. The Technician attests that the "requested information regarding search warrants and related material is part of the investigatory files compiled for civil or criminal law enforcement purposes and is exempt under 29 Del. C. § 10002(o)3)." The affidavit listed the records discovered, and the Technician attests that the documents provided represent all responsive documents within the Code Enforcement division's possession that do not otherwise fall under the exception.
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.
The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." Generalized assertions in the affidavit will not meet the burden. For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard.
As a preliminary matter, your requests for explanations are not appropriately considered under FOIA, as FOIA pertains to existing records and does not require a public body to answer questions or create a record to respond to a question. FOIA does not require a public body to create "an index, or any other compilation, as to each record or part of a record denied." Additionally, the first item of your request, the recording of the October 8, 2025 hearing, was provided to you upon the County's discovery of its inadvertent failure to include a copy with the production, per the County's sworn assertions. Thus, the challenge to this first item is moot.
For the second and third items of the request, the County provided sworn affidavits demonstrating the search of its code enforcement records and the results thereof. The Code Enforcement staff attests to locating certain responsive records which were provided, and to providing all responsive records in the division's possession, except those subject to the investigatory files exemption.
For the fourth item regarding search warrant materials, the County argues the records are not public records pursuant to 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." In exercising its code enforcement authority against the subject property, the County's notices of violation it produced cite the County's civil and criminal law enforcement authority; the County also provided a sworn statement that the search warrant records sought in the fourth item were subject to the investigatory files exemption. On the face of the request, it is clear that the warrant documents sought pertain to the law enforcement activity related to this property. The investigatory files exemption is not limited to pending investigations and continues to apply after an investigation is closed. As such, we find the County met its burden to demonstrate the requested search warrant information was fully exempt and not subject to disclosure under Section 10002(o)(3).
CONCLUSION
Based on the foregoing, we conclude that the County did not violate FOIA with respect to four items in the request, as alleged in the Petition. The claim related to the first item of the request is moot. The County met its burden of demonstrating it provided the records responsive to the second and third items after an adequate search and properly withheld the records sought in the fourth item pursuant to the investigatory files exemption.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Maria T. Knoll, Assistant County Attorney