Can an out-of-state company use Delaware's public records law to get copies of local police accident reports?

Official title

01-IB04 RE: Freedom of Information Act Complaints Against New Castle County and the City of New Castle

Plain-English summary

Health Information Association (HIA), a company that told the AG's office it was wholly owned by a Nevada corporation, asked New Castle County and the City of New Castle for the first page of uniform collision reports covering set date ranges. Both governments refused. HIA had briefly filed paperwork appointing a Delaware registered agent, but that filing was withdrawn almost immediately, and HIA otherwise had no presence in the state.

The AG resolved the consolidated complaints on two independent grounds. First, Delaware's FOIA only grants public records access to "citizens" of Delaware, and the AG found HIA did not qualify, since a corporation is generally treated as a citizen of the state that created it, and HIA was a Nevada company with no genuine Delaware presence beyond a filing it withdrew right away. Second, even assuming HIA were a Delaware citizen, the AG found the collision reports would still be exempt, because Delaware law makes police accident reports "investigatory files compiled for civil or criminal law-enforcement purposes," a category FOIA excludes from public records regardless of who is asking.

Currency note

This opinion was issued in 2001. 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

Does Delaware's public records law let anyone in the country request records from a Delaware town or county?

Not according to this opinion. The AG found that FOIA's public records provisions only entitle "citizens" of the State of Delaware to access, and that state agencies may deny requests from people, or companies, that are not Delaware citizens.

Is a company considered a "citizen" of Delaware just because it registers a Delaware agent or does business there?

No, based on this opinion. The AG treated a corporation as a citizen of the state that created it (here, Nevada), and found that briefly filing paperwork for a Delaware registered agent, which the company then withdrew, did not establish Delaware citizenship for FOIA purposes.

Are police accident and collision reports public records in Delaware?

No, according to this opinion. The AG found that uniform traffic collision reports are "investigatory files compiled for civil or criminal law-enforcement purposes," a category FOIA excludes from the definition of a public record, so the reports were exempt from disclosure independent of the requester's citizenship.

Background and statutory framework

Delaware's FOIA provides that public records "shall be open to inspection and copying by any citizen of the State," 29 Del. C. § 10003, and separately excludes "investigatory files compiled for civil or criminal law-enforcement purposes" from the definition of a public record, 29 Del. C. § 10002(d)(3). The AG's office had previously read "citizen" to include Delaware corporations, and here extended that reasoning to conclude a Nevada-owned entity did not qualify, citing Zazanis v. Jarman for the general rule that a corporation is a citizen of its state of incorporation. On the records themselves, Delaware law requires police agencies to complete a Uniform Traffic Collision Report for accidents meeting certain thresholds, 29 Del. C. § 4203(d), and separately provides that accident reports compiled for statistical purposes by the Department of Public Safety "shall not be open to public inspection," 21 Del. C. § 313(b). Delaware courts have held that investigatory files generally fall outside FOIA's reach, citing Matter of Attorney General's Investigative Demand to Malamed and Williams v. Alexander (State Fire Marshal files). The opinion noted, by way of comparison, that the federal FOIA's law-enforcement exemption, 5 U.S.C. § 552(b)(7), has been read the same way in Cooney v. Sun Shipbuilding & Drydock Co.

Citations

• 29 Del. C. Sections 10001 – 10005 (Delaware FOIA)
• 29 Del. C. §10002(2),(4) and (6) (basis cited by New Castle County for its denial)
• 29 Del. C. § 10003 (public records open to inspection by citizens of the State)
• 6 Del. C. § 1910 (Delaware Uniform Unincorporated Nonprofit Association Act, registered agent provision)
• 29 Del. C. § 10002(d)(3) (investigatory files exemption)
• 29 Del. C. § 4203(d) (uniform traffic collision report requirement)
• 21 Del. C. § 313(b) (accident reports for statistical purposes not open to public inspection)
• 5 U.S.C. § 552(b)(7) (federal FOIA law-enforcement records exemption)
• Zazanis v. Jarman, Del. Super., 1990 WL 58158, at p. 3 (Mar. 20, 1990) (corporation is a citizen of its state of incorporation)
• Matter of Attorney General's Investigative Demand to Malamed, Del. Super, 493 A.2d 972, 976 (1985) (investigatory files not public records under FOIA)
• Williams v. Alexander, Del. Super., No. 98C-05-036-WTQ (June 29, 1999) (State Fire Marshal files exempt as investigatory files)
• Cooney v. Sun Shipbuilding & Drydock Co., 288 F. Supp. 708, 711 (E.D. Pa. 1968) (federal law-enforcement investigative file exemption)

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/02/27/01-ib04-re-freedom-of-information-act-complaints-against-new-castle-county-and-the-city-of-new-castle/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 01-IB04 (Del.A.G.), 2001 WL 1593104

Office of the Attorney General

State of Delaware

Opinion No. 01 – IB04

February 27, 2001

RE: Freedom of Information Act Complaints Against New Castle County and the City of New Castle

*1 Mr. James Donato

Health Information Association

5121 Lyda Lane

Colorado Springs, CO 80904

Dear Mr. Donato:

In your letter dated November 7, 2000, received by this Office on November 8, 2000, you alleged that New Castle County ("the County") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001 – 10005 ("FOIA"), by refusing to provide, upon your request, the first page of all uniform collision reports prepared between October 1, 2000 and October 20, 2000 to your company, Health Information Association ("HIA"). Included in your complaint was a letter dated October 31, 2000 from New Castle County's First Assistant Attorney, Eric L. Episcopo, stating that the basis for the denial was 29 Del. C. §10002(2),(4) and (6). Your correspondence included a statement that your company is a Delaware corporate citizen and is entitled to request these records under 29 Del. C. § 10003.

On December 4, 2000, we received a second complaint from you against the City of New Castle ("the City") alleging a violation of FOIA, identical to the one filed against the County, for the City's refusal to provide the first page of the uniform collision reports of the time period starting September 15, 2000 (with no termination date stated). Included with the complaint against the city was a copy of a letter from the city solicitor, Gerard P. Kavanaugh, Jr. Esquire, dated November 17, 2000 denying your request citing the FOIA but not stating a specific basis for the City's denial. Because the two complaints are for identical information and involve the same provisions of the FOIA, the two complaints will be consolidated and answered by this one opinion since the same analysis and reasoning will apply to both.

On October 4, 2000, HIA filed a certificate in the office of the Secretary of State appointing a Delaware service company, Organization Services, Inc., as its agent authorized to receive service of process under the provisions of 6 Del. C. § 1910, a part of the Delaware Uniform Unincorporated Nonprofit Association Act. Upon investigation, we determined from the Secretary of State that your alleged resident agent immediately withdrew its filing and HIA has had no resident agent in the State of Delaware. HIA has not undertaken any other act to establish a Delaware presence or existence.

We have two issues presented for resolution. One is whether Health Information Association ("HIA") is a corporate citizen of the state of Delaware and entitled to request access to public documents. The second issue is whether the City and County violated FOIA by their refusal to permit HIA to have access to the documents either by an actual inspection or by the respective governments' reproduction and transmittal of the documents to HIA. For the reasons stated below, we conclude that HIA is not a citizen of the State of Delaware and is not entitled, in its own right, to utilize FOIA to obtain access to public records of the State of Delaware. We further conclude that, even if HIA were a Delaware citizen, the records would be protected from public access under 29 Del. C. § 10002(d)(3).

STATUTORY PROVISIONS

*2 Twenty-nine Del. C. § 10003 provides that "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."

Twenty-nine Del. C. § 10002 (d)(3) excludes from public access: "Investigatory 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

The Attorney General's Office has determined that state agencies may deny requests for access to public records by individuals who are citizens of other states. See Opinion 91-IO03 (Feb. 1, 1991) ("Non-Delaware citizens, therefore, may be denied access completely."); Opinion 96-IB01 (Jan. 2, 1996) (Maryland resident cannot invoke the open meeting law).

In terms of a corporation it "is generally accepted that, at very least for jurisdictional purposes, a corporation is considered a citizen of the state that created it." Zazanis v. Jarman, Del. Super., 1990 WL 58158, at p. 3 (Mar. 20, 1990) (Herlihy, J.). This Office has interpreted the term "citizen" in FOIA to include companies incorporated under the Delaware General Corporation Law. Opinion 91-IO03 (Feb. 1, 1991).

HIA is, according to statements attributable to you, wholly owned by a company incorporated under the laws of Nevada. The mere fact that Delaware law allows an unincorporated non-profit association like HIA to do business in Delaware does not convey citizenship status for purposes of obtaining access to public documents under the FOIA. Since HIA does not qualify as a citizen of the State of Delaware, New Castle County and the City of New Castle may deny HIA's request for traffic reports on that basis alone.

Even if HIA were a Delaware citizen, the question remains whether a traffic report prepared by a law enforcement agency is exempt from disclosure under FOIA. Section 10002 (d)(3) excludes from public access: "Investigatory 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 courts in Delaware have held that "investigatory files are not public records within the purview of the Freedom of Information Act." Matter of Attorney General's Investigative Demand to Malamed, Del. Super, 493 A.2d 972, 976 (1985). Accord Williams v. Alexander, Del. Super., No. 98C-05-036-WTQ (June 29, 1999) (State Fire Marshal files are investigatory files compiled for civil or criminal law-enforcement purposes and exempt from disclosure under FOIA). 1

Delaware law requires all police agencies to "investigate and complete the State of Delaware Uniform Traffic Collision Report supplied by the Delaware Department of Public Safety on all reported accidents involving an impaired driver, apparent property damage to the extent of $1,000 or more, or personal injury or death to a person, when such accidents occur within that agency's jurisdiction." 29 Del. C. § 4203(d). These traffic reports are investigative files used for civil or criminal law enforcement purposes. In particular, the reports are used in the investigation and criminal prosecution of drunk driving cases, and in administrative proceedings by the Division of Motor Vehicles to suspend or revoke driver's licenses.

*3 The reports are also used by the Department of Public Safety for statistical purposes, and all police agencies must send copies of their traffic reports to the Secretary to tabulate and publish "statistical information based thereon as to the number, cause and location of highway accidents." 21 Del. C. § 313(b). Even in that context, Delaware law provides that such reports "shall be for the information of the Department of Public Safety and shall not be open to public inspection." Id.

CONCLUSION

For the foregoing reasons, we determine that the County and the City did not violate FOIA by denying you access to copies of the traffic reports which you requested.

Very truly yours,

Michael J. Rich

State Solicitor

Footnotes

1
The federal Freedom of Information Act has a similar law enforcement investigative file exemption, 5 U.S.C. § 552(b)(7). "This exemption covers investigatory files related to the enforcement of all kinds of laws, labor and securities laws as well as criminal laws." Cooney v. Sun Shipbuilding & Drydock Co., 288 F. Supp. 708, 711 (E.D. Pa. 1968) (accident report prepared by OSHA was an investigative file exempt from disclosure).

Del. Op. Atty. Gen. 01-IB04 (Del.A.G.), 2001 WL 1593104