Can Delaware DOT keep the identity of someone who filed a complaint about you confidential under FOIA?

Official title

17-IB47 9/22/2017 FOIA Opinion Letter to Mr. Richard Kahn re: FOIA Complaint Concerning the Delaware Department of Transportation

Plain-English summary

Richard Kahn asked the Delaware Department of Transportation (DelDOT) to identify who had filed a complaint against him about his mailbox, including the complainant's name and address. DelDOT denied the request, treating the complaint and any related file as an exempt investigatory record.

The AG agreed. Delaware FOIA excludes "investigatory files compiled for civil or criminal law-enforcement purposes" from the definition of a public record, and Delaware courts have held that exemption attaches as soon as an agency becomes aware of a potential issue and survives even after any investigation concludes. Because Kahn's request sought information about the person who triggered a DelDOT complaint-based investigation, any responsive records fell within that exemption, and DelDOT did not violate FOIA by declining to identify the complainant.

Currency note

This opinion was issued in 2017. 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 find out who complained about me to a Delaware state agency through a FOIA request?

Often not, according to this opinion. If the complaint triggered or fed into an agency investigation, the AG treated the complaint and any related file, including the complainant's identifying information, as an exempt investigatory record under FOIA, regardless of whether the investigation was still open.

Does the investigatory-files exemption expire once an investigation is closed?

No. The opinion cited Delaware Court of Chancery precedent holding that the exemption attaches when an agency first learns of a potential issue and survives the conclusion of any resulting investigation, meaning closed cases are not automatically opened up to FOIA disclosure.

Does this exemption apply only to law-enforcement agencies?

No. The opinion applied the investigatory-files exemption to a Department of Transportation complaint file, following a precedent that applied the same exemption to a professional-licensing complaint investigated by a state board, showing the exemption is not limited to police or criminal investigations.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, defines "public record" broadly, but 29 Del. C. § 10002(1)(3) exempts investigatory files compiled for civil or criminal law-enforcement purposes, including pending investigative files. The Delaware Court of Chancery held in News-Journal Co. v. Billingsley that both a formal complaint and the document leading to an investigation by a professional licensing board were exempt under this provision, and that the exemption continues to protect the file even after the investigation concludes. This opinion applied that same reasoning to a citizen complaint received by DelDOT about a neighbor dispute, finding the complainant's identity protected on the same basis.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(1) (definition of "public record" and its exclusions)
• 29 Del. C. § 10002(1)(3) (investigatory files exemption)
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (complaint and file leading to a professional licensing investigation exempt as investigatory files, even after investigation closes)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/09/22/3488/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/09/Attorney-General-Opinion-No.-17-IB47.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB47
September 22, 2017

VIA U.S. MAIL & EMAIL

Richard K. Kahn

978 Marl Pit Road
Middletown, DE 19709
[email protected]

Re: September 18, 2017 FOIA Correspondence Concerning the Delaware
Department of Transportation

Dear Mr. Kahn:

I write in response to your correspondence, received in its entirety on September 18, 2017,[1]
alleging that the Delaware Department of Transportation ("DelDOT") violated the public records
provisions of Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA"). I
treat your correspondence as a petition for a determination pursuant to 29 Del. C. §10005 regarding
whether a violation of FOIA has occurred or is about to occur ("Petition"). Specifically, you allege
that DelDOT violated FOIA by denying your July 28, 2017 request for records. For the reasons
set forth below, it is my determination that DelDOT did not violate FOIA as alleged.

On July 28, 2017, you sent the following FOIA request to DelDOT: "A complaint was
filed regarding our mailbox . . . and I would like the name, and any relevant information such as
their address, of the individual(s) that filed this complaint." On August 16, 2017, DelDOT denied
your request on the basis that "complaints that are investigated by DelDOT are not considered
public records under section 10002(1)(3) of FOIA, because they are 'investigatory files compiled
for civil or criminal law-enforcement purposes.'" DelDOT also cited to the Delaware Court of
Chancery's opinion in News-Journal Co. v. Billingsley[2] for the proposition that "[e]ven after the
investigation is closed, the complaints and the file must remain confidential." I agree.

Delaware's FOIA defines "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 . . . "[3] However, among the information that FOIA exempts from the
definition of "public records" are "[i]nvestigatory files compiled for civil or criminal law-
enforcement purposes including pending investigative files."[4] Delaware courts have made clear
that, for purposes of FOIA, the investigatory exemption attaches as soon as an agency is first made
aware of a potential issue and survives the conclusion of any resulting investigation.[5]

Here, you have specifically requested information regarding the individual(s) who
submitted a complaint to DelDOT regarding your mailbox. To the extent that any responsive
records exist, they would constitute "investigatory files compiled for civil or criminal law-
enforcement purposes" and, as such, are not "public records" subject to disclosure under FOIA.
Therefore, it is my determination that DelDOT did not violate FOIA in denying your request.

Very truly yours,

LaKresha S. Roberts
Chief Deputy Attorney General

cc: Annie Cordo, Deputy Attorney General (via email)
Michelle E. Whalen, Deputy Attorney General (via email)

[1] Your initial correspondence was dated September 15, 2017 and supplemented per our
request on September 18, 2017. As the supplemental information is critical to our evaluation of
your FOIA allegation, we deem the correspondence to have been received on September 18, 2017.

[2] 1980 WL 3043 (Del. Ch. Nov. 20, 1980).

[3] 29 Del. C. § 10002(1).

[4] 29 Del. C. § 10002(1)(3).

[5] See Billingsley, 1980 WL 3043, at 3 (concluding that both a document and a formal
complaint which led to an investigation by the Delaware Association of Professional Engineers
were exempted from FOIA pursuant to the investigatory file exemption); see also Del. Op. Att'y
Gen. 17-IB05, 2017 WL 1317847, at 3 (Mar. 10, 2017) (records relating to a possible violation
of an order issued by the Secretary of the Department of Natural Resources and Environmental
Control exempted from FOIA's definition of public record).