Can a reporter get the medical examiner's conclusion about a person's manner of death through a Delaware public records request?

Official title

15-IB13 12/29/2015 FOIA Opinion Letter to Ms. Melissa Steele re: FOIA Complaint Concerning the Delaware Division of Forensic Science

Plain-English summary

A newspaper reporter asked Delaware's Division of Forensic Science (DDFS) for the examination report or autopsy findings in the death of a seven-year-old child. DDFS denied the request, explaining that post-mortem reports are investigative files exempt from FOIA's definition of a public record. The reporter did not dispute that conclusion, but asked the AG to instead order release of just the medical examiner's determination of the child's "manner of death," arguing that the agency's predecessor used to release that information and that a deceased person has no privacy interest to protect.

The AG agreed the underlying report was exempt and went on to hold that the manner-of-death conclusion itself was equally off-limits. The opinion relies on the Delaware Supreme Court's decision in Lawson v. Meconi, which permanently enjoined police from releasing information from a medical examiner's autopsy record, for the principle that if the underlying report is exempt as an investigatory file, any information drawn from that report is exempt too. Because both the medical examiner and state police were investigating the child's death, and there remained a possibility that someone could face criminal or civil liability, the medical examiner's manner-of-death finding fell within FOIA's exemption for investigatory files, and that exemption does not expire once an investigation concludes. The change in agency practice did not matter either, since the previous office that may have released such findings had been abolished and replaced, and the new agency and its parent department were free to set their own policies consistent with governing law.

Currency note

This opinion was issued in 2015. 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 I get a copy of a medical examiner's autopsy report through a Delaware public records request?

Generally no, according to this opinion. Post-mortem and autopsy records prepared in connection with a death investigation are treated as investigatory files exempt from FOIA's definition of a public record, because they are compiled to aid a law-enforcement investigation into the cause and manner of death.

If the full report is exempt, can I at least get just the medical examiner's bottom-line conclusion, like the manner of death?

Not under this opinion. The AG found that once a report qualifies as an exempt investigatory file, information drawn from that report, including a summary conclusion like manner of death, is exempt as well. The exemption does not stop at the physical document; it extends to the information the document contains.

Does the investigatory-files exemption expire once the investigation is finished?

No. The opinion states plainly that records and information in an agency's investigative files do not become public once the investigation ends.

If an agency used to release certain information as a matter of practice, does it have to keep doing so?

Not necessarily. The opinion found that a change in which office handles death investigations, following a reorganization that abolished the old Office of the Chief Medical Examiner, meant the new agency and its parent department could adopt their own practices and policies, as long as those policies comply with governing law.

Background and statutory framework

FOIA defines a "public record" broadly, 29 Del. C. §10002(l), and generally requires public records to be open for inspection and copying, 29 Del. C. §10003(a). But records falling within one of FOIA's specific exemptions are not public records at all, including "[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," 29 Del. C. §10002(l)(3). DDFS itself was created in 2014 when the General Assembly abolished the former Office of the Chief Medical Examiner and reorganized death-investigation functions, 79 Del. Laws ch. 265, §1 (2014), with its parent department authorized to adopt implementing rules, 29 Del. C. §4702.

The opinion draws on its own 2005 precedent describing post-mortem reports as "a compilation of facts about the scene where the body was located and its condition" used "to aid in the determination of the cause of death" and potentially becoming "part of the files of the prosecutor and the police," itself quoting the Indiana appellate decision in Heltzel v. Thomas and the Ohio Supreme Court's decision in State ex rel. Dayton Newspapers, Inc. v. Rauch for the principle that such a report is itself an investigation whose confidentiality is essential to effective law enforcement use. The central authority, however, is the Delaware Supreme Court's decision in Lawson v. Meconi, which permanently enjoined police from issuing a press release containing information from a medical examiner's autopsy record and held that "[i]nvestigatory files are not public information. A fortiori, any information gathered during the course of an investigation is not public information." Applying Lawson, because both the medical examiner and state police were investigating the child's death and a possibility of future criminal or civil proceedings existed, the manner-of-death conclusion fell within the investigatory-files exemption. The opinion also cites News-Journal Co. v. Billingsley for the principle that records in an investigative file do not become public once the investigation concludes.

Citations and references

Statutes:

• 29 Del. C. §10001 et seq. (Delaware's Freedom of Information Act)
• 29 Del. C. §10005(e) (citizen petition to the Attorney General for a FOIA determination)
• 29 Del. C. §10002(l) (defines "public record")
• 29 Del. C. §10003(a) (public records open to inspection and copying)
• 29 Del. C. §10002(l)(3) (exemption for investigatory files compiled for civil or criminal law-enforcement purposes)
• 79 Del. Laws ch. 265, §1 (2014) (established the Division of Forensic Science and abolished the Office of the Chief Medical Examiner)
• 29 Del. C. §4702 (Department of Safety and Homeland Security's rulemaking authority)

Cases:

• Heltzel v. Thomas, 516 N.E.2d 103 (Ind. App. 1987) (describes the investigative nature of post-mortem reports)
• State ex rel. Dayton Newspapers, Inc. v. Rauch, 465 N.E.2d 458 (Ohio 1984) (a post-mortem report's confidentiality is essential to its investigative use)
• Lawson v. Meconi, 897 A.2d 740 (Del. 2006) (Delaware Supreme Court; enjoined release of medical examiner autopsy information; investigatory files and information drawn from them are not public)
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigative file records do not become public once the investigation ends)

Source

• Landing page: https://attorneygeneral.delaware.gov/2015/12/29/15-ib13-12292015-foia-opinion-letter-to-ms-melissa-steele-re-foia-complaint-concerning-the-delaware-division-of-forensic-science/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 15-IB13

December 29, 2015

VIA EMAIL AND US MAIL

Melissa Steele

The Cape Gazette

17585 Nassau Commons Blvd.

Lewes, DE 19958

[email protected]

Re: FOIA Petition Dated November 24, 2015

Dear Ms. Steele:

We write in response to your petition dated November 24, 2015 (the "Petition"), in which you alleged that the Delaware Division of Forensic Science (the "DDFS") violated the public records requirements of the Delaware Freedom of Information Act, 29 Del. C. §10001 et seq. ("FOIA"). Our determination is that no violation of FOIA has occurred or is about to occur. See 29 Del. C. §10005(e).

I. RELEVANT FACTS

On or about October 13, 2015, you submitted a FOIA request to DDFS "for the examination report or autopsy findings in the death of Nathan Leppo, 7, who died Sept. 22 in Oak Orchard."[1] DDFS denied your request, stating that "post-mortem reports prepared by [DDFS] pursuant to statute are investigative files that are exempt from the definition of a public record under FOIA."[2]

II. POSITION OF THE PARTIES

You appear to concede that DDFS did not violate FOIA when it denied your request for the decedent's "examination report [and] autopsy findings." The Petition makes no such argument. Rather, the Petition asks that we "investigate the refusal of the Division of Forensic Science to release the manner of death in the case…." In support of the request, you argue that (1) "[t]he Department of Homeland Security and Safety's refusal to release manner of death contradicts previous policy" and (2) "a dead person has no privacy rights."[3]

In its response to the Petition (the "Response"), DDFS denies that it violated FOIA, again arguing that the post-mortem report and the information therein fall within the investigative files exemption. Accordingly, the decision to release the requested information is discretionary. In its discretion, DDFS seeks to withhold the information because the decedent is a minor.

III. APPLICABLE LAW

FOIA defines a "public record" as "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes."[4] FOIA provides that "[a]ll public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate body," and "[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen."[5]

The mandate to permit inspection and copying does not apply to records that are not "public records." Records that fall within one of the express exemptions set forth in section 10002(l) are not public records and need not be disclosed. Relevant to this matter is the exemption for investigatory files:

For purposes of this chapter, the following records shall not be deemed public:

(3) 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[.][6]

IV. ANALYSIS

We agree with your apparent conclusion, and we determine here, that DDFS did not violate FOIA when it denied your request for the "examination report or autopsy findings" in the case. The ME's post-mortem report falls within FOIA's exemption for investigative files.[7] With this, we have satisfied our mandate, and our letter could end here.

The Petition makes a new demand, which we address in the interest of efficiency. The Petition now seeks only the Medical Examiner's conclusion regarding the "manner of death" of the decedent. In support of the request you first contend that such information used to be released by the former Office of the Chief Medical Examiner. This is not determinative. The Office of the Chief Medical Examiner was governed by a different state agency, and it has been dissolved.[8] It is the right of the DDFS and its parent agency, the Delaware Department of Safety and Homeland Security, to adopt practices and policies that otherwise comply with governing law.[9]

The issue is whether the Medical Examiner's conclusion regarding Nathan Leppo's manner of death is a public information that must be disclosed under FOIA. We find that it is not.

The Delaware Supreme Court has addressed the status of information contained in a medical examiner's report, as distinct from the report itself.[10] The Court held that where the report itself is exempt from disclosure under FOIA, the information in the report is likewise exempt.[11] When a record or information is not public according to section 10002(l)(3), a public body may, but need not, release the record or information.

As in Lawson, the Medical Examiner and the police both conducted investigations in to Nathan Leppo's death.[12] At least during the time of the investigations, and of the Medical Examiner's determination regarding cause and manner of death, there was a possibility that one or more persons would face criminal charges or civil claims in connection with the child's death. Accordingly, the Medical Examiner's investigation and determination of the manner of death fall squarely within FOIA's exemption for criminal or civil investigatory files.[13] Records and information in an agency's investigative files do not become public when the investigation ends.[14]

V. CONCLUSION

DDFS did not violate FOIA when it declined to provide the requested records. Likewise, DDFS did not violate FOIA when it declined to disclose the manner of death of the decedent in response to the new request in the Petition. The Medical Examiner's investigation and determination are part of DDFS' investigative files and are not public records for purposes of FOIA.

Very truly yours,

/s/ Danielle Gibbs

Danielle Gibbs

Chief Deputy Attorney General

cc: Lisa Morris, Deputy Attorney General (by email)

[1] Letter from Melissa Steele to DDFS, dated October 13, 2015.

[2] Letter from Kimberly H. Chandler to Melissa Steele, dated October 26, 2015.

[3] We need not reach the argument regarding privacy rights.

[4] 29 Del. C. §10002(l).

[5] 29 Del. C. §10003(a).

[6] 29 Del. C. §10002(l)(3).

[7] Post-mortem reports "'are a compilation of facts about the scene where the body was located and its condition' and are 'used to aid in the determination of the cause of death,' and 'may become part of the files of the prosecutor and the police.'" Del. Op. Att'y Gen. 05-IB16, at *4 (June 22, 2005) (quoting Heltzel v. Thomas, 516 N.E.2d 103, 105 (Ind. App. 1987)). "Such a report 'is, in itself, an investigation' and its confidentiality 'is essential to its effective use in further investigation by law enforcement personnel.'" Id. (quoting State ex rel. Dayton Newspapers, Inc. v. Rauch, 465 N.E.2d 458, 459 (Ohio 1984) (per curiam)). Accordingly this office has determined that "post-mortem reports prepared by the office of the Chief Medical Examiner pursuant to statute are investigative files that are exempt from the definition of a public record under FOIA." Id.

[8] See 79 Del. Laws ch. 265, §1 (2014) (codified at 29 Del. C. Chapter 47) (establishing the Division of Forensic Science and abolishing the Office of the Chief Medical Examiner).

[9] See 29 Del. C. §4702 ("The Department of Safety and Homeland Security may adopt and promulgate rules and regulations to carry into effect this chapter.").

[10] Lawson v. Meconi, 897 A.2d 740, 743, 745, 747 (Del. 2006) (permanently enjoining police from issuing a press release containing information from medical examiner's examination record and autopsy).

[11] Id. at 745 (citing Del. Op. Atty. Gen. 05-IB16 with approval and stating: "Investigatory files are not public information. A fortiori, any information gathered during the course of an investigation is not public information.").

[12] See Leanne Guyette, Del. State Police investigating death of 7-year-old in Oak Orchard, WMDT 47 abc, posted Sept. 24, 2015, available at http://www.wmdt.com/news/more-local-news/Del-State-Police-investigating-death-of-7-year-old-in-Oak-Orchard/35463272

[13] See 29 Del. C. §10002(l)(3) (exempting from disclosure "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files . . . .").

[14] See, e.g., News-Journal Co. v. Billingsley, 1980 WL 3043, at *3 (Del. Ch. Nov. 20, 1980); Del. Op. Att'y Gen. 99-IB14 (1999) ("[T]he policies behind the exception are even more compelling when the agency decides not to take enforcement action, in order to protect the 'identity of uncharged suspects.'") (internal citation omitted).