Can a Delaware resident use FOIA to see a code enforcement complaint file about their own property, even after the case is closed with no charges filed?

Official title

99-IB14 RE: Freedom of Information Act Complaint Against Town of Elsmere

Plain-English summary

A resident asked the Town of Elsmere to see a police complaint file about an unregistered vehicle parked in his own driveway, and the town refused, citing FOIA's investigatory-file exception among other grounds. The AG agreed the investigatory-file exception applied and didn't need to reach the town's backup arguments about criminal and intelligence file exceptions. Even though the statute's language refers to "pending" investigations, Delaware case law had already established the exception keeps applying after a file is closed, especially when no criminal charges result. The AG found the town's Code Enforcement Office, which investigates and can pursue misdemeanor prosecutions for code violations, is exactly the kind of investigative agency FOIA protects, not just police departments. The reasoning goes further when no charges are filed: protecting the identity of an uncharged person and of witnesses who reported a possible violation serves an important government interest, because publicizing that information could discourage people from reporting problems in the first place. If charges are ever filed, the matter becomes a public court record and a defendant has separate constitutional rights, including the right to confront witnesses at trial, but that doesn't require identifying witnesses beforehand.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does FOIA's investigatory-file exemption stop applying once a case is closed?
A: No, according to this opinion, which cites Delaware Chancery Court precedent holding the exception continues to apply even after a file is closed, particularly where no criminal charges were filed.

Q: Does the investigatory-file exemption only cover police departments?
A: No. This opinion found the exemption also covers administrative agencies engaged in civil or criminal law-enforcement investigations, including a municipal code enforcement office that can pursue misdemeanor prosecutions.

Q: Why keep an uncharged complaint file confidential instead of releasing it once no charges are filed?
A: According to this opinion, protecting the identity of uncharged suspects and of witnesses serves an important government interest, since publicizing that information could discourage citizens from reporting possible violations in the future.

Background and statutory framework

FOIA's general access rule in 29 Del. C. § 10003(a) is limited by § 10002(d)(3), which excludes investigatory files compiled for civil or criminal law-enforcement purposes, including pending investigations, from the definition of a disclosable "public record." Delaware's News-Journal Co. v. Billingsley held this exception survives the closing of a file, and out-of-state authority, including Equitable Trust Co. v. State and State ex rel. McGee v. Ohio Board of Psychology, extends the same exemption to administrative and licensing-board investigations, not just police agencies. The AG also noted a defendant's Sixth Amendment confrontation right does not require pretrial identification of witnesses, citing United States ex rel. Herhal v. Anderson.

Citations and references

Statutes:

• 29 Del. C. § 10003(a), the general FOIA rule requiring public records be open to inspection and copying
• 29 Del. C. § 10002(d)(3), excludes investigatory files compiled for civil or criminal law-enforcement purposes from disclosure
• U.S. Const. amend. VI, guarantees a criminal defendant the right to confront witnesses

Cases:

• News-Journal Co. v. Billingsley, Del. Ch., 1980 WL 3043 (Nov. 20, 1980), holding the investigatory-file exception applies even after a file is closed
• Equitable Trust Co. v. State, Md. Spec. App., 399 A.2d 908 (1979), applying the investigatory-file exception to a state human relations commission's discrimination investigation
• State ex rel. McGee v. Ohio Board of Psychology, Ohio Supr., 550 N.E.2d 945, 947 (1990), applying the exception to a state licensing board's investigative activities
• United States ex rel. Herhal v. Anderson, 334 F. Supp. 733 (D. Del. 1971), holding pretrial identification of witnesses is not constitutionally required

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/11/05/99-ib14-re-freedom-of-information-act-complaint-against-town-of-elsmere/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 99-IB14 (Del.A.G.), 1999 WL 1095345

Office of the Attorney General

State of Delaware

Opinion No. 99 – IB14

November 5, 1999

RE: Freedom of Information Act Complaint Against Town of Elsmere

*1 Mr. Philip A. Ceresini, III

1204 Spruce Avenue

Wilmington, DE 19805

Dear Mr. Ceresini:

In your letter dated July 13, 1999 (received by this Office on July 16, 1999), you alleged that the Town of Elsmere (the "Town") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001 – 10005 ("FOIA"), by denying you access to public records. Specifically, you allege that the Town did not allow you to review documents police complaint file No. 99-188 relating to an unregistered motor vehicle parked in your driveway.

By letter dated July 23, 1999, we asked the Town to respond to this issue. By letter dated July 28, 1999, the Town answered stating that the information you asked to see is exempt from disclosure under FOIA under the "investigative file" exception. Alternatively, the Town claims that the records are protected under the "criminal file" and "intelligence file" exceptions.

For the reasons given below, we conclude that the exception for "investigative files" protects the requested records from disclosure.

STATUTORY PROVISIONS

Section 10003(a) of FOIA provides: "All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." Section 10002(d)(3) excepts from the definition of a "public record" "[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."

OPINION

Although the statute refers to "pending" investigations, the Chancery Court has held that the "investigative file" exception to FOIA applies even after the file has been closed. See News-Journal Co. v. Billingsley, Del. Ch., 1980 WL 3043 (Nov. 20, 1980) (Hartnett, V.C.). This is especially true in cases where no criminal charges are filed. Moreover, the investigatory file exception applies to administrative agencies, not just criminal law enforcement agencies such as the police. See, e.g., Equitable Trust Co. v. State, Md. Spec. App., 399 A.2d 908 (1979) (State Human Relations Commission investigating charges of racial discrimination); State ex rel. McGee v. Ohio Board of Psychology, Ohio Supr., 550 N.E.2d 945, 947 (1990) (per curiam) (exception applied to "investigative activities of state licensing boards"). See also, Atty. Gen. Op. NO. 98IB-13.

*2 The Town's Code Enforcement Officer is charged with investigating violations of the Elsmere Code ("Code") and enforcing, if necessary, through criminal prosecution, violations of the Code. Elsmere Code §34-13. There are, for example, criminal penalties for violations of Chapter 171 of the Code (Property Maintenance). See Elsmere Code §171-2C ("Any person who shall violate the provisions of this Code and Ordinance, or who shall fail to comply with any notice or order issued by the Code Official pursuant to the provisions of this Code, shall be guilty of a misdemeanor and, upon conviction, shall be subject to a fine… or imprisonment for not more that thirty (30) days, or both…")

The Code Enforcement Office is the kind of investigative agency whose files FOIA exempts from disclosure. Accordingly, the complaint of Code violations which you have asked to review are not "public records" for purposes of FOIA. This investigative file exception applies whether or not the investigating agency decides "to file charges." McGee, supra. Indeed, the policies behind the exception are even more compelling when the agency decides not to take enforcement action, in order to protect the "identity of uncharged suspects." Id. In addition, protecting the identity of witnesses to uncharged violations serves an important government interest in the reporting of possible violations by citizens. Revealing the names of witnesses in uncharged complaints may have a chilling effect on enforcement by discouraging witness participation. If the investigation results in criminal charges, then that becomes a matter of public record and you may have access to whatever criminal records are available through the courts or required under the Constitution. Any individual who is charged has the right to confront witnesses whose testimony is used in a criminal prosecution. U.S. Const. Amend. 6. It is not necessary to identify a witness before trial. United States ex rel. Herhal v. Anderson, 334 F. Supp. 733 (D.Del. 1971)

Because we have determined that the exception for "investigative files" excludes the requested records from production under FOIA, it is unnecessary to address the alternative exceptions of "criminal files" and "intelligence files."

CONCLUSION

For the foregoing reasons, we determine that the Town did not violate FOIA by denying you access to public records.

Very truly yours,

Sherry V. Hoffman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor