Can Delaware police withhold records about a suspect’s immigration status after an investigation closes?

Plain-English summary

A requester asked Delaware State Police for an individual’s immigration or citizenship status and history in connection with a murder investigation. Police denied access under FOIA’s investigatory-files exemption. The requester argued that the investigation was closed and that the public had an interest in the information.

The AG concluded that the requested records concerned a criminal law-enforcement response and investigation. The opinion said the investigatory exemption “is not limited to pending investigations and continues to apply after an investigation is closed.” On that ground, it found no FOIA violation in the denial. Police also argued they need not answer questions or create records, but the AG’s stated analysis rested on the records exemption.

What this means for you

Requesters seeking police records

For the information requested in this petition, closure of the investigation did not end the investigatory-files exemption. The opinion did not determine the person’s immigration or citizenship status.

Police records custodians

The AG treated records about this criminal law-enforcement encounter as investigatory files under the cited exemption, despite the requester’s argument that the investigation had ended.

Common questions

Q: Does a closed Delaware police investigation make its file public under FOIA? A: The opinion said the investigatory-files exemption continues after closure. It upheld withholding the requested information about this encounter.

Q: What information had the requester sought?
A: The request asked for a person’s immigration or citizenship status and history connected to a described murder investigation; the opinion did not supply that information.

Q: Was the denial upheld because the request was phrased as questions? A: Police made that argument, but the AG’s discussion and conclusion relied on the investigatory-files exemption.

Background and statutory framework

Section 10002(o)(3) exempts investigatory files compiled for civil or criminal law-enforcement purposes. The opinion cited earlier authority for the exemption attaching when an agency first learns of a potential issue and surviving completion of the investigation. It applied that rule to the requested criminal-investigation records.

Citations and references

• 29 Del. C. § 10002(o)(3) (investigatory-files exemption).
• 29 Del. C. § 10005(c) (burden of proof).

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/08/24/26-ib51-8-24-26-foia-opinion-letter-to-marie-collins-re-delaware-state-police/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/09/Attorney-General-Opinion-No.-26-IB51.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
FAMILY DIVISION: (302) 577-8400
FRAUD DIVISION: (302) 577-8600
DIVISION OF CIVIL RIGHTS & PUBLIC TRUST: (302) 577-5400
FAX: (302) 577-2610

Office of the Attorney General of the State of Delaware
Attorney General Opinion No. 26-IB51
August 24, 2026

Via Email
Marie Collins
[email protected]

Re:

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

Dear Ms. Collins:
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 records.

Background
On May 15, 2026, you submitted a FOIA request to the DSP with the questions: “[w]hat was the immigration/citizenship status of the individual on December 23, 2025 and what was his immigration/citizenship history?” 1 The request described the incident and an individual alleged to be involved in a murder on that date. On May 26, 2026, the DSP denied this request pursuant to 29 Del. C. § 10002(o)(3), citing the investigatory file records exemption for criminal law enforcement. The DSP also stated that FOIA does not require public bodies to compile data from other public records, answer questions in a written or spoken format, or create records that do not exist. This Petition followed.

1

Petition.
1

In the Petition, you contend that the DSP improperly denied your request, because the DSP routinely releases information about suspects in criminal investigations including their demographic information. You further note that this information should be disclosed because the investigation has been closed. You contend that nondisclosure is contrary to the purpose of FOIA, and because the FOIA statute only applies to Delaware citizens, citizenship of requesting parties must already be confirmed through FOIA. You further argue that the State has access to this information, and citizens have a right to know this immigration and citizenship status information; it should be available to allow citizens to monitor policy decisions of State officials. On July 29, 2026, the DSP, through its legal counsel, replied to the Petition (“Response”). The DSP contends that it is well established that any records pertaining to law enforcement incidents, including police reports and the information in police reports, fall within the investigatory files exemption. The DSP argues that the information you requested clearly falls within the investigatory files exemption, and this exemption applies after the investigation is closed. The DSP also asserts that because public bodies are not required to answer questions, the DSP is not obligated to answer this request, which does not seek records but rather seeks answers to inquiries.

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.” 2 FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 3 The public body has the burden of proof to justify its denial of access to records. 4 In certain circumstances, a sworn affidavit may be required to meet that burden. 5 Section 10002(o)(3) exempts “[i]nvestigatory files compiled for civil or criminal lawenforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue.” “[T]he investigatory exemption attaches as soon as an agency is first made aware of a potential issue.” 6 This exemption is not limited to pending investigations and continues to apply after an

2

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

3

29 Del. C. § 10003(a).

4

29 Del. C. § 10005(c).

5

Judicial Watch, Inc., 267 A.3d at 1012.

6

Del. Op. Att’y Gen. 17-IB05, 2017 WL 1317847, at *3 (March 10, 2017). 2

investigation is closed.7 Here, the request seeks information about an individual involved in a DSP criminal law enforcement response and investigation; such records, on their face, pertain to an investigation for criminal law enforcement purposes. 8 Thus, the requested records are considered part of law enforcement investigatory files and are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

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

Very truly yours,

__________
Daniel Logan
Chief Deputy Attorney General

cc:

Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

7

News-Journal 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); see also Del. Op. Att’y Gen. 17-IB47, 2017 WL 4652343, at 1 (Sept. 22, 2017); Del. Op. Att’y Gen. 05-IB16, 2005 WL 2334345, at 2 (Jun. 22, 2005); Del. Op. Att’y Gen. 98-IB13, 1998 WL 910199, at 1 (Dec. 8, 1998).

8

Del. Op. Att’y Gen. 25-IB14, 2025 WL 818783, at 2 (Feb. 28, 2025) (“The DSP’s denial of these photographs and video footage under the investigatory files exemption is proper, as these records involve a law enforcement encounter precipitating a police investigation.”); Del. Op. Att’y Gen. 24-IB11, 2024 WL 1132324, at 2 (Feb. 23, 2024) (“This request seeks information regarding the date and type of calls for service to the DSP from a particular residence, which on its face, would initiate police investigation. Thus, the requested records are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).”). 3