Can a Delaware town keep a neighbor's complaint letter confidential even after the mayor mentioned parts of it in public?

Official title

09-IB06 RE: Freedom of Information Act ("FOIA") Complaint Against Townsend, Delaware

Plain-English summary

A Townsend resident's family had used a vacant lot behind their house in a way that drew a complaint. After the mayor told the original complainer that the town would not investigate without something in writing, the town received a written complaint letter. At a later council meeting, when the resident's husband asked whether the town could "post" the lot, the mayor referenced the letter and some of the conduct it described. The resident then formally requested a copy of the letter under FOIA, and the town refused, citing the exemption for law-enforcement investigatory files.

The AG upheld the refusal on three separate grounds. First, a complaint letter reporting a possible ordinance violation counted as an investigatory file exempt from disclosure, precisely because forcing towns to release such letters would discourage people from reporting problems to local government at all; because the letter could not be redacted without revealing who wrote it, the whole document stayed confidential. Second, the resident argued the mayor had effectively promised to give her the letter at the meeting, but the AG found no estoppel because she had not relied on that promise: she filed her formal FOIA request the very next day instead of waiting for the mayor to follow through. Third, the resident argued that once the mayor publicly described some of the letter's contents, the whole document became public. The AG rejected that too, explaining that revealing a small piece of a document in public remarks does not waive confidentiality over the rest of it, especially where the town has a strong interest in protecting people who report possible violations from being publicly identified.

Currency note

This opinion was issued in 2009. 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

Could a Delaware town keep a citizen's written complaint about a neighbor confidential?

Yes, according to this opinion. A letter reporting a possible ordinance violation qualified as a law-enforcement investigatory file exempt from FOIA, precisely to avoid discouraging people from reporting problems.

If a town official verbally promised to give someone a document, did that force the town to release it under FOIA?

Not by itself, according to this opinion. The AG found no estoppel because the requester did not actually rely on the mayor's promise, having filed a formal FOIA request the very next day instead.

If a government official publicly described part of a confidential document, did that waive confidentiality over the whole thing?

No, according to this opinion. Revealing only a small part of a document in public remarks did not put the entire document in the public domain, especially given the town's interest in protecting people who report possible violations.

Background and statutory framework

FOIA required that public records be available for inspection and copying, 29 Del. C. § 10003, but excluded "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes" from the definition of a public record. Id. § 10002(g)(3).

The AG relied on the Delaware Court of Chancery's News-Journal Co. v. Billingsley for the principle that a law-enforcement public body may withhold complaint letters to avoid "a chilling effect" on those who might otherwise report violations, whether or not the body ultimately investigates. Because the letter here could not be redacted without revealing its author's identity, the entire document remained confidential. On the estoppel argument, the AG applied the reliance requirement described in the D.C. federal district court's Hertzberg v. Veneman and the Delaware Supreme Court's Burge v. Fidelity Bond and Mortgage Co., finding no detrimental reliance because the requester filed her FOIA request the day after the mayor's alleged promise rather than waiting on it. On waiver, the AG drew on the D.C. Circuit's Public Citizen v. Dep't of State, which held that an agency's partial public disclosure of information does not waive an otherwise-applicable exemption over the remainder of a document, to conclude that the mayor's brief public remarks did not place the full letter in the public domain.

Citations

• 29 Del. C. § 10003 (public records must be available for inspection and copying)
• 29 Del. C. § 10002(g)(3) (exemption for investigatory files compiled for civil or criminal law-enforcement purposes)
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (Delaware state court; law-enforcement complaint letters may be withheld to avoid a chilling effect on future complainants)
• Hertzberg v. Veneman, 273 F.Supp.2d 67, 82 (D.D.C. 2003) (federal court; estoppel requires the requester to show detrimental reliance on the agency's conduct)
• Burge v. Fidelity Bond and Mortgage Co., 648 A.2d 414, 420 (Del. 1994) (Delaware state court; same reliance element for estoppel)
• Public Citizen v. Dep't of State, 11 F.3d 198, 201 (D.C. Cir. 1993) (federal court; partial public disclosure of information in a document does not waive an otherwise-applicable exemption over the rest of the document)

Source

• Landing page: https://attorneygeneral.delaware.gov/2009/06/09/09-ib06-re-freedom-of-information-act-foia-complaint-against-townsend-delaware/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 09-IB06 (Del.A.G.), 2009 WL 1805911

Office of the Attorney General

State of Delaware

Opinion No. 09 – IB06

June 9, 2009

RE: Freedom of Information Act ("FOIA") Complaint Against Townsend, Delaware

*1 Malinda Miller

624 South Street

P.O. Box 44

Townsend, DE 19734

Dear Ms. Miller:

On May 15, 2009, I received your undated letter complaining that the Town of Townsend (“Town”) had denied your April 23, 2009 FOIA request for a copy of a letter to the Mayor complaining about your family’s use of a vacant lot behind your house. The Town had denied your request on the grounds that the document is part of a law enforcement investigatory file, exempted from FOIA pursuant to 29 Del. C. § 10002 (g)(3). On May 29, 2009, we received the Town’s response to your complaint. We asked the Town for additional information, which we received on June 3, 2009. This is the Attorney General’s determination of your complaint, pursuant to 29 Del. C. § 10005 (e).

FACTS

According to the Town, in response to a recent verbal complaint about your family’s use of the vacant lot, the Mayor advised the complainant that the Town would not investigate without a written complaint. Shortly thereafter, the Town received the letter in contention here. According to the Town’s notes of the April 22, 2009 Town Council meeting, Jay Miller, your husband, questioned during the public comment portion of the meeting whether the Town could “post” the vacant lot. The Mayor responded by mentioning the letter complaining about Miller’s behavior when using the lot and by referring to some of the activities Miller allegedly engaged in on the lot. You contend that you are entitled to a copy of the letter because the Mayor offered to give it to you, and that the Town cannot claim the exemption for investigatory files because you do not believe there is an investigation.

RELEVANT STATUTES

29 Del. C. § 10003 requires that public records be available to the public for inspection and copying. 29 Del. C. § 10002 (g)(3) excludes “[i]nvestigatory files compiled for civil or criminal law-enforcement purposes …” from the definition of a public record.

DISCUSSION

A public body that enforces the law has the right pursuant to 29 Del.C. § 10002 (g)(3) to withhold from the public letters of complaint about violations of the law. News-Journal Co. v. Billingsley , 1980 WL 3043, at *3 (Del. Ch. Nov. 20, 1980) . This protection is necessary to avoid “a chilling effect on those who might bring pertinent information to the attention of” law enforcement. Id. This chilling effect would occur whether the public body chose to investigate the complaint or to ignore it.

The Town of Townsend is charged in its Charter to protect the public from the conduct the letter complains of, and Town ordinances prohibit such conduct. In order to avoid further public dissemination, I will not cite the specific sections that your family allegedly violated. When the Town receives a complaint alleging conduct that would violate an ordinance, it is entitled to protect the complainant by keeping its file confidential. Because of the public interest in preserving the confidentiality of law enforcement files, and because I find that the letter cannot be redacted to prevent disclosure of the identity of the person who wrote it, the entire letter may remain confidential.

*2 You contend that because the Mayor said he would give you the letter, it must be disclosed to you. The same argument was made in Hertzberg v. Veneman , 273 F.Supp.2d 67, 82 (D.D.C. 2003) , where the defendant agency repeatedly assured the plaintiff that requested documents would be disclosed, and then refused to release them, asserting various privileges. The court considered whether the defendant should be permitted to assert its position, applying the doctrine of estoppel, which requires the plaintiff to show, among other things, that he or she detrimentally relied on the defendant’s conduct. Id. at 83; Burge v. Fidelity Bond and Mortgage Co. , 648 A.2d 414, 420 (Del. 1994) . In Hertzberg the court found no reliance and therefore no estoppel. We find that even if the Mayor promised at the April 22, 2009 meeting to give you the letter, you did not rely on his promise, because the very next day you made a FOIA request for the letter. Thus, you have not demonstrated that the Town should be estopped to deny your FOIA request.

Although the Mayor publicly related some of the letter’s contents, the letter itself has not thereby become part of the public domain. Public Citizen v. Dep’t of State , 11 F.3d 198, 201 (D.C. Cir. 1993) held that although an agency can waive a FOIA exemption by publicly releasing information, congressional testimony that “revealed certain facts contained in the disputed documents” did not constitute a FOIA waiver because of the government’s strong interest in protecting national security. Similarly, here, the Mayor, by revealing only a small part of an extensive complaint, did not put the letter in the public domain. Moreover, the Town has a strong interest in protecting those who bring to its attention possible violations of the Town’s laws.

CONCLUSION

For the reasons stated herein, the Town of Townsend did not violate the Freedom of Information Act when it withheld from public disclosure a letter of complaint alleging possible violations of the Town Code.

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 09-IB06 (Del.A.G.), 2009 WL 1805911