Can I get Delaware town ethics-commission records about a complaint filed against me, if only I would see them?

Official title

09-IB07 RE: Freedom of Information Act Complaint Against Town of Smyrna

Plain-English summary

A Smyrna resident asked the town for records related to an ethics complaint filed against him, and the town released only the meeting notes from two Ethics Commission sessions while withholding everything else. He argued that because he was the subject of the complaint, there was no confidentiality concern in giving him the rest of the file.

The AG sided with the town on a narrower ground than any the town itself had raised. The town's own Code of Conduct made every Ethics Commission proceeding and record confidential by its own terms, and FOIA respects that kind of local confidentiality rule through its exemption for records "specifically exempted from public disclosure by statute." Because that provision alone resolved the case, the AG did not need to reach the town's separate arguments that the records were also law-enforcement investigatory files or covered by attorney-client privilege. On the resident's central argument, that confidentiality should not matter since only he would see the records, the AG explained that FOIA does not work that way: if the Ethics Commission's files were public records at all, the town would have to disclose them to any member of the public who asked, not just to him. FOIA does have a narrower provision letting certain criminal records be shared selectively, but that provision did not apply here since these were not criminal records. Because the records were confidential to begin with, there was no selective disclosure to make.

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's own code of conduct make government records confidential under FOIA?

Yes, according to this opinion. FOIA exempted records "specifically exempted from public disclosure by statute," and a town ordinance declaring ethics commission proceedings confidential fell within that exemption.

If someone was the subject of a complaint, could a Delaware town share the confidential file with just that person?

No, according to this opinion. If the records were public at all, the town would have to make them available to anyone, not just the person the complaint concerned, so confidentiality could not be waived for one requester alone.

Did FOIA let government bodies share records with only the person the records were about, while keeping them secret from everyone else?

Only in narrow circumstances involving certain criminal records, according to this opinion, and that provision did not apply to town ethics commission files.

Background and statutory framework

FOIA required public records to be disclosed unless they fell under one of seventeen exceptions listed in 29 Del. C. § 10002(g), including "[i]nvestigatory files compiled for civil … law enforcement purposes," id. § 10002(g)(3), and "[a]ny records specifically exempted from public disclosure by statute or common law." Id. § 10002(g)(6). Section 2-207(h)(4) of the Town of Smyrna Code of Conduct directed the town's ethics commission to "establish such procedures as … may be necessary to prevent the disclosure of any record of any proceedings or other information received by the ethics commission, except as permitted by this chapter."

Because that municipal confidentiality provision independently satisfied § 10002(g)(6)'s exemption, the AG found it unnecessary to decide whether the withheld records also qualified as investigatory files or were covered by attorney-client or work-product privilege, the two other grounds the town had raised. On the requester's argument that disclosure to him alone would not implicate confidentiality, the AG explained that FOIA's general rule required disclosure to the public at large, not to a single requester, and that the statute's narrower allowance for limited disclosure applied only to certain criminal records under 29 Del. C. § 10002(g)(4), a category the ethics commission's civil proceedings did not fall into.

Citations

• 29 Del. C. § 10002(g) (public records must be disclosed unless covered by one of seventeen listed exceptions)
• 29 Del. C. § 10002(g)(3) (exemption for investigatory files compiled for civil or criminal law-enforcement purposes)
• 29 Del. C. § 10002(g)(6) (exemption for records specifically exempted from disclosure by statute or common law)
• 29 Del. C. § 10002(g)(4) (limited disclosure provision applicable to certain criminal records)
• Town of Smyrna Code of Conduct § 2-207(h) (Ethics Commission proceedings are confidential)
• Town of Smyrna Code of Conduct § 2-207(h)(4) (directing the Ethics Commission to establish procedures preventing disclosure of its records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2009/11/06/09-ib07-re-freedom-of-information-act-complaint-against-town-of-smyrna/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 09-IB07 (Del.A.G.), 2009 WL 4049033 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 09-IB07

November 6, 2009

RE: Freedom of Information Act Complaint Against Town of Smyrna

*1 Mr. David C. Pleasanton

35 West Mt. Vernon Street

Smyrna, DE 19977

Dear Mr. Pleasanton:

On August 7, 2009, the Delaware Department of Justice (“DDOJ”) received your emailed complaint that the Town of Smyrna (“the Town”) violated the Freedom of Information Act (“FOIA”) by refusing to release to you some of the records of the Town Ethics Commission concerning a complaint against you. On September 2, 2009, the DDOJ forwarded your letter to the Town. We received its response on September 15, 2009. This is the DDOJ’s determination of your complaint pursuant to 29 Del. C. § 10005(e).

RELEVANT FACTS

On July 20, 2009, the Town received your email request to inspect and copy “Ethics Commission records related or pertaining to any complaint filed against [you].” By a letter, undated, the Town responded that it was producing notes for the March 19 and April 2, 2009 meetings of the Ethics Commission, but that other records were being withheld.

RELEVANT STATUTES

All public records must be made available to the public for inspection and copying unless they are “not deemed public” under one of the exceptions listed in 29 Del. C. § 10002(g). The § 10002(g) exceptions include:

(3) Investigatory files compiled for civil … law enforcement purposes …;”

(6) Any records specifically exempted from public disclosure by statute or common law[.]
DISCUSSION

The Town’s position is as follows:

1. Pursuant to Section 2-207(h) of the Town of Smyrna Code of Conduct, all proceedings before the Ethics Commission are confidential and, therefore are protected under 29 Del. C. § 10002(g)(6), as records specifically exempted under statute.

2. The withheld records are civil law enforcement records exempt from disclosure under 29 Del. C. § 10002(g)(3).

3. Certain of the withheld records are subject to attorney client or attorney work product privilege and, therefore are exempt under the common law as provided by 29 Del. C. § 10002(g)(6).

Your position is that, because only you would see the records, confidentiality is not an issue.

Section 2-207(h)(4) of the Town of Smyrna Code of Conduct provides as follows:

Confidentiality procedures. The … ethics commission shall … establish such procedures as … may be necessary to prevent the disclosure of any record of any proceedings or other information received by the ethics commission, except as permitted by this chapter.

Therefore, all records of the Ethics Commission are confidential by statute and are exempt from FOIA disclosure by 29 Del. C. § 10002(g)(6). As a result, we do not need to address the Town’s contentions that the records at issue constitute a law enforcement investigatory file or are subject to a common law privilege.

*2 As to your claim that confidentiality is not an issue because only you would see the file, FOIA provides for limited disclosure only of criminal records, and the files you request are not criminal records. 29 Del. C. § 10002(g)(4). If we agreed that Ethics Commission files were subject to disclosure under FOIA, the Town would be obligated to disclose the records pertaining to you not just to you but to any requesting member of the public.

CONCLUSION

For the reasons stated herein, we find that the Town of Smyrna has not violated the Freedom of Information Act in withholding from disclosure files of the Town Ethics Commission pertaining to complaints made about your conduct.

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 09-IB07 (Del.A.G.), 2009 WL 4049033 (Del.A.G.)

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.