Can a newspaper get a police accident report if it isn't a party to a lawsuit the county says the report relates to?

Official title

04-IB20 Re: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

A News Journal reporter asked New Castle County for a copy of a 2001 police accident report from a hit-and-run on Yorklyn Road. The County refused, pointing to a federal civil rights lawsuit that alleged, among other things, that county officials covered up the fact that the son of a county official was involved in that same hit-and-run. The County argued the report related to that pending litigation and was also part of an investigative file.

The AG rejected the litigation-based defense on its own terms: the pending-litigation exemption exists to stop a party to a lawsuit from using public records requests as a backdoor around normal discovery rules, and since neither the reporter nor the newspaper was a party to that federal case, the County couldn't invoke that exemption against them just because the report happened to be relevant to someone else's lawsuit. But that didn't end the analysis. The AG found, independent of the litigation dispute entirely, that Delaware treats uniform accident reports as investigatory files compiled for law-enforcement purposes, and separately that the state's motor vehicle code makes accident reports off-limits to public inspection outright. Either of those two exemptions applied regardless of who was asking or why, so the report stayed exempt even though the litigation argument itself had failed.

Currency note

This opinion was issued in 2004. 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

Can a Delaware government deny my records request just because the records are relevant to someone else's lawsuit that I'm not involved in?

Not under the pending-litigation exemption alone, according to this opinion. The AG found that exemption only applies to block a party (or someone using FOIA to help a party) get around normal discovery, so it can't be used against a requester who has no connection to the lawsuit in question.

Are police accident reports public records in Delaware, regardless of who is asking for them?

No, according to this opinion. The AG found that accident reports are exempt as investigatory files compiled for law-enforcement purposes, and separately that Delaware's motor vehicle code makes such reports off-limits to public inspection outright, both independent of the litigation question.

If one legal argument for withholding a record fails, does that mean the record has to be released?

Not necessarily, according to this opinion. The AG rejected the county's litigation-based argument but still found the record exempt for two separate reasons that didn't depend on any lawsuit at all, showing that a public body can lose on one theory and still prevail on another.

Background and statutory framework

Delaware's FOIA opens public records to citizen inspection, 29 Del. C. § 10003(a), while exempting records pertaining to pending or potential litigation, id. § 10002(g)(9), investigatory files compiled for law-enforcement purposes, id. § 10002(g)(3), and records specifically exempted by another statute or common law, id. § 10002(g)(6). On the litigation exemption, the AG applied Mell v. New Castle County and Office of the Public Defender v. Delaware State Police for the rule that the exemption exists to stop litigants from using FOIA as an end run around court discovery, which by definition doesn't apply to a non-party with no stake in the case. On the investigatory-files point, the AG carried forward its own prior determination (from the opinion discussing Health Information Association's request for collision reports) that uniform accident reports are investigative files used in drunk-driving prosecutions and license suspension proceedings. Independently, the AG applied Delaware Chancery's Jacobs v. City of Wilmington, which held that the motor vehicle code's requirement that accident reports "shall not be open to public inspection," 21 Del. C § 313(b), makes such reports exempt under FOIA's separate statute-based exemption without even reaching the investigatory-file question.

Citations

• 29 Del. C. § 10003(a) (public records open to citizen inspection)
• Id. § 10002(g)(9) (pending or potential litigation exemption)
• Id. § 10002(g)(3) (investigatory files compiled for law-enforcement purposes)
• Id. § 10002(g)(6) (records exempted by another statute or common law)
• 21 Del. C § 313(b) (accident reports not open to public inspection)
• Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003) (pending-litigation exemption turns on the requester's identity and purpose)
• Office of the Public Defender v. Delaware State Police, Del. Super., C.A. No. 01C-09-208 (exemption applies to litigants seeking case materials, not ordinary requesters)
• Jacobs v. City of Wilmington, C.A. No. 18679, 2002 WL 27817 (Del. Ch., Jan. 3, 2002) (Delaware Chancery Court; accident reports exempt under the motor vehicle code's separate statutory bar on public inspection)

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/11/16/04-ib20-re-freedom-of-information-act-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 04-IB20 (Del.A.G.), 2004 WL 2951950

Office of the Attorney General

State of Delaware

Opinion No. 04-IB20

November 16, 2004

Re: Freedom of Information Act Complaint Against New Castle County

*1 Ms. Mary Allen

The News Journal

950 W. Basin Road

P.O. Box 15505

Wilmington, DE 19850

Dear Ms. Allen:

Our Office received your Freedom of Information Act ("FOIA") complaint on September 13, 2004 alleging that New Castle County ("the County") violated the public records requirements of FOIA by not providing you with a copy of a county police accident report from an incident that occurred on Friday, November 30, 2001 at 11:35 p.m. on Yorklyn Road.

By letter dated September 14, 2004, we asked the County to respond to your complaint within ten days. We received the County's response on September 22, 2004. The County contends that the accident report is exempt from disclosure under FOIA because: (1) the report pertains to pending litigation; and (2) the report is part of an investigative file.

Relevant Statutes

FOIA requires that "[a]ll 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." 29 Del. C. § 10003(a).

FOIA exempts from disclosure "[a]ny records pertaining to pending or potential litigation which are not records of any court." Id. § 10002(g)(9).

FOIA exempts from disclosure "[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." Id. § 10002(g)(3).

FOIA exempts from disclosure "[a]ny records specifically exempted from public disclosure by statute or common law." Id. § 10002(g)(6).

Legal Authority

A. Pending Litigation

The County provided us with a copy of the complaint in Tobin v. Gordon et al., C.A. No. 04-1211 (D. Del., filed Sept. 2, 2004). According to the County, the police report you requested pertains to the allegations in the complaint: (1) that the defendants retaliated against the plaintiff for testifying before a federal grand jury; and (2) "that defendants covered up the fact that Freebery's son, Patrick Duffy, was involved in a hit-and-run motor vehicle accident on Friday, November 30, 2001 at 11:35 p.m."

FOIA's pending/potential litigation exemption is intended to prevent litigants from using "FOIA as a means to obtain discovery which is not available under the court's rules of procedure." Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003) (Slights, J.). The exemption "turns on the identity of the requestor and the purpose of the request." Att'y Gen. Op. 03-IB21 (Oct. 6, 2003). The exemption applies when "[i]t is exclusively about litigators and litigants looking for materials that might help them in court." Office of the Public Defender v. Delaware State Police, Del. Super., C.A. No. 01C-09-208 (Silverman, J.).

*2 Neither you nor The News Journal is a party or potential party to the civil rights litigation between Lieutenant Henry V. Tobin, III and the County. The County, therefore, cannot invoke the pending litigation exemption under FOIA to deny you public records that may have some nexus to the civil rights litigation because you are not a litigant, and there is no evidence that you are trying to use FOIA to circumvent the civil discovery rules.

B. Investigative File

The County is correct that the accident report you requested is exempt from disclosure under FOIA as an investigative file. See 29 Del. C. § 10002(g)(3). In Att'y Gen. Op. 01 – IB04 (Feb. 27, 2001), we determined that uniform collision reports compiled by the New Castle County Police Department were exempt from disclosure under FOIA. "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 a drivers' licenses."

C. Records Specifically Exempted by Other Statute

Although the County did not claim this exemption, we determine that the accident report you requested is exempt from disclosure by a statute other than FOIA (the motor vehicle code).

In Att'y Gen. Op. 02-IB04, we observed that traffic reports must be furnished to the Department of Public Safety, and that such reports "shall be for the information of the Department of Public Safety and shall not be open to public inspection." 21 Del. C § 313(b). In Jacobs v. City of Wilmington, C.A. No. 18679, 2002 WL 27817 (Del. Ch., Jan. 3, 2002) (Strine, V.C.), the Chancery Court held that traffic accident reports compiled by the Wilmington Police Department were exempt from disclosure under FOIA. The Court did not address the investigative file exemption, but held that Section 313(b) of Title 21 of the Delaware Code exempted traffic accident reports from disclosure under FOIA as "records specifically exempted from public disclosure by statute." 29 Del. C. § 10002(g)(6). "[B]ecause the reports are specifically exempted by the statutory scheme described in Chapters 42 and 3 of Title 21 of the Delaware Code, they are not public records under FOIA per 29 Del. C. § 10002(g)(6)." 2002 WL 27817 at p.5.

Conclusion

For the foregoing reasons, we determine that the County did not violate the open records requirements of FOIA by denying you access to the police accident report you requested. We determine that the traffic accident report that you requested is exempt from disclosure under Sections 10002(g)(3), 10002(g)(6), and 10002(g)(9) of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

Del. Op. Atty. Gen. 04-IB20 (Del.A.G.), 2004 WL 2951950