Can a journalist get a sheriff's DUI prosecution file from Delaware's Attorney General after he's already pleaded guilty and been sentenced?

Official title

10-IB13 RE: Appeal from Denial of Freedom of Information Act (FOIA) Records Request

Plain-English summary

A News Journal reporter asked the Delaware Department of Justice for its complete prosecution file on Kent County Sheriff James Higdon's DUI case, filing the request right around the time Higdon pleaded guilty and was sentenced. The DOJ refused, citing the exemptions for law-enforcement investigatory files and attorney work product.

The AG found a key distinction built into Delaware's public records law: a "criminal record," meaning a person's own record of arrests and convictions, is something anyone can get a copy of for themselves, but a "criminal file," the prosecutor's actual case file, is closed to the public with no listed exception, whether the case is still pending or long over. The reporter's timing did not change that. Even though the immediate worry about jeopardizing an active prosecution disappears once a case ends, other reasons for confidentiality do not: witnesses who spoke to police often expect confidentiality that does not evaporate the moment a plea is entered, and defendants frequently plead guilty specifically to avoid exposing embarrassing details of their arrest, an incentive that would collapse if the whole file became public the instant the case closed. The AG also considered the practical effect of a rule that opened criminal files at case's end: not just reporters, but the defendant himself, his friends, unindicted associates, and merely curious members of the public would all be entitled to the same file. If the legislature had wanted the criminal-file exemption to expire once a case wrapped up, the AG reasoned, it could have written that limit into the statute; it did not, so the AG would not read one in. The attorney work-product privilege independently covered parts of the file too. The AG also noted that Delaware's own criminal discovery rules give a defendant, whose liberty was actually on the line, only the portions of his file due process requires, making it especially odd to read FOIA as handing the general public more of that same file than the defendant himself ever received.

Currency note

This opinion was issued in 2010. 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

What was the difference between a Delaware "criminal record" and a "criminal file" for public records purposes?

According to this opinion, a criminal record was a person's own record of arrests and convictions, which that person could obtain a copy of; a criminal file was the prosecutor's actual case file, which stayed closed to the public with no listed exception.

Did a criminal prosecution file become public once the case was over and the defendant had pleaded guilty?

No, according to this opinion. The exemption for closed criminal files did not expire when the underlying criminal case concluded, because concerns like witness confidentiality and defendants' privacy persisted after a case ended.

Could a member of the public get more information from a closed criminal file than the actual defendant received during the case?

Not under this opinion. The AG found it would be inconsistent to let the general public obtain an entire prosecution file under FOIA when the defendant himself, facing the loss of his liberty, was only entitled to the portions required by due process under the state's criminal discovery rules.

Background and statutory framework

FOIA's declaration of policy favored easy public access to records, 29 Del. C. § 10001, but § 10002(g) excluded certain categories from the definition of "public record," including "criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy," while separately allowing "[a]ny person" to "obtain a copy of the person's criminal record" upon proof of identity; "[a]ll other criminal records and files" remained "closed to public scrutiny." Id. § 10002(g)(4). FOIA also exempted records specifically protected by common law, id. § 10002(g)(6), which the AG applied to attorney work-product material within the file.

The AG relied on the Delaware Court of Chancery's Jacobs v. City of Wilmington, which had denied a similar records request based on a specific statutory confidentiality provision for traffic accident reports, 21 Del. C. § 313(b), reasoning that criminal files connected to DUI arrests deserved no less protection than accident reports connected to the same kind of incident. The AG also applied the "chilling effect" rationale from the Delaware Court of Chancery's News Journal Co. v. Billingsley, extending it from investigatory files generally to closed criminal prosecution files specifically, and cited the Delaware Superior Court's Atamian v. Bahar as reflecting the same underlying policy considerations against post-adjudication disclosure. The AG further noted that Delaware's criminal discovery rule, Superior Court Criminal Rule 16, entitles a criminal defendant only to the portions of his own case file that due process requires, reinforcing the conclusion that the general public should not receive broader access to that same file under FOIA.

Citations

• 29 Del. C. § 10001 (FOIA's declaration of policy: easy public access to records is vital to a free and democratic society)
• 29 Del. C. § 10002(g) (public records exclusions)
• 29 Del. C. § 10002(g)(4) (a person may obtain their own criminal record; all other criminal records and files remain closed to public scrutiny)
• 29 Del. C. § 10002(g)(6) (exemption for records specifically protected by common law, including attorney work product)
• 21 Del. C. § 313(b) (traffic accident reports are not open to public inspection)
• Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. 2002) (Delaware state court; traffic accident reports statutorily closed to public inspection)
• News Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (Delaware state court; investigatory files may be withheld to avoid a chilling effect on future complainants)
• Atamian v. Bahar, 2002 WL 264533 (Del. Super. Feb. 22, 2002) (Delaware state court; supporting the same policy considerations against disclosure)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/10/08/10-ib13-re-appeal-from-denial-of-freedom-of-information-act-foia-records-request/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB13 (Del.A.G.), 2010 WL 4154565

Office of the Attorney General

State of Delaware

Opinion No. 10 – IB13

October 8, 2010

RE: Appeal from Denial of Freedom of Information Act (FOIA) Records Request

*1 Sean O’Sullivan

Courts Reporter

The News Journal

P.O. Box 15505

Wilmington, DE 19850

Dear Mr. O’Sullivan:

On July 29, 2010 the Delaware Department of Justice (“Delaware DOJ”) denied your July 14, 2010 FOIA request for the Delaware DOJ file concerning the arrest of James A. Higdon for driving while under the influence. The Delaware DOJ denied your request on the grounds that the information is either attorney work product, and therefore exempt under 29 Del. C. § 10002 (g)(6), or a law enforcement investigative file, exempt under 29 Del C. § 10002 (g)(3). You have asked for a review of that denial, pursuant to 29 Del. C. § 10005 (e). This is my determination of your appeal.

FACTS

James A. Higdon is the Sheriff of Kent County, Delaware. He was arrested and charged with Driving Under the Influence of Alcohol on May 29, 2010. As reported by the News Journal papers, on July 15, 2010, Mr. Higdon entered a guilty plea to the charge and he was sentenced immediately thereafter. From the timing, it appears that your FOIA request was substantially contemporaneous with your reporting on the arrest and conviction for the News Journal papers. You have requested that the Delaware DOJ release its prosecution file relating to the prosecution of Mr. Higdon.

LAW

We begin our analysis by reference to the FOIA statute itself. The “Declaration of Policy” set forth at 29 Del. C. § 10001 states that “it is vital that citizens have easy access to public records in order that the society remain free and democratic” and that the FOIA law should be construed consistent with this purpose.

But not all “records” are “public records.” 29 Del. C. § 10002 (g) carves out certain classes of documents that are not to be considered “public records” and are therefore exempt from disclosure. For our purposes, the obvious exemption comes in section 10002 (g)(4) which exempts “criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person’s criminal record. All other criminal records and files are closed to public scrutiny.” The statute goes on to allow agencies with “criminal records” information to delete certain information before release of the record. Id.

*2 Thus, the criminal records exemption of section 10002 makes a distinction between “criminal files” and “criminal records.” While any person may obtain a copy of his/her criminal record, subject only to an agency’s authority to withhold certain information contained in the criminal record, “criminal files” are closed; there is no exception in the statute. Without question, the information sought here is the “criminal file” in the possession of the Department of Justice. We see no applicable exception in the statute.

The only characteristic of this criminal file that makes this request arguably different is the fact that the request came fast on the heels of the resolution of the criminal charge to which it relates. This may indeed vitiate to some extent the policy needs to retain the confidentiality of the file. Post adjudication, there is no longer a concern that the criminal prosecution might be somehow jeopardized by release of the criminal investigative report pretrial. But other policy concerns expressed by the statute remain. Witnesses frequently speak to authorities on condition of anonymity, or at least with an expectation that their information will be held in confidence with law enforcement. That expectation does not suddenly expire with the completion of the criminal case. In addition, criminal suspects are often arrested by law enforcement when they are not performing at their best. The embarrassment of their behavior often causes them to plead guilty rather than expose their misbehavior to public scrutiny. Thus, the privacy concerns of witnesses, informants and defendants themselves are each implicated by a reading of the statute that would except closed criminal files from the FOIA exemption for criminal files.

It would be naïve not to consider the broader implication of a reading of the FOIA statute that would terminate FOIA exemption of a criminal file at the conclusion of a criminal case. The request here is no different, so far as we can see, from one that might be made by anyone upon termination of a criminal case. Not only would the newspapers be entitled to the criminal file, but so would the defendant, his friends, relatives, unindicted coconspirators, their attorneys and even the merely curious. We see a great potential for mischief in such a rule. When considered in that light, we are doubly confident that the General Assembly did not intend for criminal files to lose their FOIA exemption upon termination of the criminal proceeding.

Thus, we do not believe the reasons for the exemption from FOIA for criminal files pivots on the “pending trial” vs. “post adjudication” axis. Rather, as if a plain reading of the statute were not enough, there are sound and well considered policy reasons why criminal files should not lose their FOIA exempt status upon completion of the criminal case. If the General Assembly were to believe that the FOIA exemption for criminal files should end upon resolution of the criminal charges, it could certainly craft such a statue quite easily. It did not and we must conclude it did not intend to.

Other exemptions and other common law privileges come into play if the question here were not answered fully by the plain language of the statute. FOIA also exempts “records specifically exempted from public disclosure by statute or common law.” 29 Del. C. § 10002 (g)(6). The common law privilege for attorney work product applies to FOIA . Op. Att’y Gen. 02-IB16 , 2002 WL 31031225 (Del. A.G. July 30, 2002) . Thus, documents in the file containing an attorney’s work product are not subject to FOIA .

*3 The Delaware Rules of Criminal Procedure, Rule 16 specifically governs the materials contained within a criminal file that are to be disclosed to a criminal defendant. It is noteworthy that the criminal procedural rule does not call upon the state to disclose to the defendant the entire content of the criminal file, but rather only those portions necessary to comport with due process. It strikes us as odd indeed that only certain information from a criminal file is to be made available to a criminal defendant whose liberty is on the line, but that the entire criminal file ought to be made available to him under a FOIA request after his conviction and sentencing.

In Jacobs v. City of Wilmington , 2002 WL 27817 (Del. Ch. 2002) , Vice Chancellor Jacobs ruled in a case in which a local chiropractor sought copies of all traffic accident reports prepared by the Wilmington Police Department so that he could “cold call” the automobile drivers and offer his chiropractic services. The Court noted that 21 Del. C. § 313 (b) provides that traffic accident reports were required to be reported to the Department of Safety and Homeland Security, but that such reports “shall not be open to public inspection.” On that basis, he denied the chiropractor’s request. As it cannot be gainsaid that many traffic accidents are intertwined with driving under the influence arrests, it is difficult to conceive of a rule that would make a criminal report of a DUI arrest that did not cause an accident subject to FOIA but exempt one that did.

In News Journal Co. v. Billingsley , 1980 WL 3043 (Del. Ch. Nov. 20, 1980) , the Delaware Association of Professional Engineers (DAPE) refused a FOIA request for a letter complaining about an engineer licensed by DAPE to practice in Delaware even though the investigation was closed. The Court affirmed the denial of the request, citing the “chilling effect upon those who might bring pertinent information to the attention of the Association.” Id. , at *3. These same policy considerations militate against permitting disclosure of the Higdon criminal file post adjudication. See Atamian v. Bahar , 2002 WL 264533 (Del. Super. Feb. 22, 2002) .

CONCLUSION

Although FOIA establishes a presumption of disclosure for “public records,” that presumption is not applicable where the “record” is specifically excluded from the definition. Criminal files maintained by the Attorney General for prosecution clearly fit within the exemption from disclosure. Not only are these files not “public records” within the meaning of the statute, but there are good and sound policy considerations for excluding them from FOIA . We see nothing in either the language or the purposes for which FOIA was enacted that would support an exception to the exemption from disclosure for criminal files once the criminal charge has been disposed. Had the General Assembly intended to end the exemption from FOIA upon conclusion of the criminal case, it could have said so quite simply. Therefore, it is my conclusion that the Delaware DOJ has not violated FOIA by denying the News Journal’s request for the Higdon criminal file.

Sincerely,

*4 Charles E. Butler

Chief Deputy Attorney General

Del. Op. Atty. Gen. 10-IB13 (Del.A.G.), 2010 WL 4154565