Is a police department's response to a FOIA request 'delivered' if it's left in a parcel box marked packages-only?

Official title

18-IB11 2/22/2018 FOIA Opinion Letter to Mr. Richard McVey re: FOIA Complaint Concerning the Town of Laurel

Plain-English summary

Richard McVey asked the Laurel Police Department for a recording of a conversation between himself, a police officer, and another individual connected to a criminal matter. He petitioned the AG alleging the department missed FOIA's 15-business-day response deadline. Police Chief Dan Wright's office responded that he had personally hand-delivered a written response on February 13, 2018, within the deadline; McVey later found the letter in a parcel box on his porch, but argued delivery there didn't count because the box was labeled for packages only, with letters and flyers meant to go in the mail slot instead.

The AG found the response was timely regardless of which receptacle it landed in, since it was actually delivered to McVey's residence within 15 business days. On the merits, the AG also addressed, as a matter of efficiency, Laurel's separate denial of the recording itself: the department withheld it as an investigatory file compiled for civil or criminal law-enforcement purposes, and the AG agreed that exemption applied, meaning McVey's entitlement to the recording, if any, would have to come from some source other than FOIA. The opinion declined to address McVey's separate allegations of discovery violations and misconduct, since those fall outside FOIA's scope, suggesting he consult an attorney about them instead.

Currency note

This opinion was issued in 2018. 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

Does it matter exactly where a Delaware agency physically leaves a hand-delivered FOIA response?

Not under this opinion. The AG focused on whether the response was delivered to the requester's residence within the statutory deadline, not on whether it was placed in the specific receptacle the requester designated for mail versus packages.

Can Delaware police withhold a recording connected to a criminal matter from a FOIA request?

Yes, according to this opinion, when the recording qualifies as an investigatory file compiled for civil or criminal law-enforcement purposes. The AG found that exemption applied here and that any right McVey might have to the recording would need to come from a legal source other than FOIA.

If I have concerns about police misconduct or how evidence was handled in my case, can I raise that in a FOIA petition?

Not according to this opinion. The AG explicitly declined to address allegations of discovery violations or misconduct, since those fall outside FOIA's scope, and suggested consulting an attorney for that kind of claim instead.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires a public body to respond to a request within 15 business days. 29 Del. C. § 10003(h)(1). FOIA separately exempts "investigatory files compiled for civil or criminal law-enforcement purposes" from its "public record" definition. 29 Del. C. § 10002(1)(3). This opinion applied both provisions in sequence: first confirming the response was timely delivered regardless of the exact drop-off location, then confirming that the underlying investigatory-file exemption justified withholding the specific recording requested.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10003(h)(1) (15-business-day response deadline)
• 29 Del. C. § 10002(1)(3) (investigatory files exemption)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/03/06/18-ib011-2-22-2018-foia-opinion-letter-mr-richard-mcvey-re-foia-complaint-concerning-town-laurel/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/03/Attorney-General-Opinion-No.-18-IB11.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 COUNCIL 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. 18-IB11

February 22, 2018

VIA U.S. MAIL AND EMAIL

Richard McVey

505 S. Central Avenue
Laurel, DE 19956
[email protected]

RE: FOIA Correspondence Regarding the Laurel Police Department

Dear Mr. McVey:

We write regarding your February 15, 2018 correspondence, wherein you allege that the
Laurel Police Department ("Laurel") violated the Delaware Freedom of Information Act, 29 Del.
C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination
pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about
to occur ("Petition"). We invited Laurel to submit a written response to the Petition. We received
a response from Laurel and your reply thereto ("Reply") on February 20, 2018.[1] As set forth more
fully below, it is our determination that Laurel did not violate FOIA in connection with your
December 22, 2017 FOIA request.

In your Petition, you alleged that Laurel violated FOIA by failing to provide a timely
response to your January 24, 2018 FOIA request for a copy of a recording between yourself, a
Laurel police officer and another individual in connection with a criminal matter. Specifically,
you alleged that Laurel failed to provide a response to your request within 15 business days as
required by FOIA. In response to the Petition, Laurel provided a copy of a letter, dated February
13, 2018, and stated that Chief Dan Wright hand delivered a copy of the letter to your residence
on February 13, 2018. In your Reply, you acknowledged that you had since located the February
13, 2018 letter in a parcel box on your front porch. You alleged that the response was not
"delivered" as required by FOIA because the box on your front porch states that it is for packages
only and requests that letters and flyers be placed in the mail slot.

Pursuant to 29 Del. C. § 10003(h)(1), "[t]he public body shall respond to a FOIA request
as soon as possible, but in any event within 15 business days after receipt thereof, either by
providing access to the requested records, denying access to the records or parts of them, or by
advising that additional time is needed . . . ." Here, the record demonstrates that Chief Dan Wright
hand delivered a response to your FOIA request on February 13, 2018, within 15 business days of
your request. As such, and notwithstanding your argument to the contrary, we are satisfied that
Laurel provided a timely response to your January 24, 2018 request as required by FOIA.

Finally, we note that you wish to challenge Laurel's denial of your FOIA request. While
we would ordinarily inform you that such a challenge would form the basis of a new petition, we
address that allegation as a matter of efficiency and because the record here is sufficient for us to
do so. Here, Laurel has denied your request on the basis that the requested record is exempted
from FOIA pursuant to 29 Del. C. § 10002(1)(3), which exempts "[i]nvestigatory files compiled
for civil or criminal law-enforcement purposes . . ." As we are satisfied that the requested record
is in fact part of an investigatory file compiled for civil or criminal law-enforcement purposes, we
believe that Laurel was permitted to deny your request on that basis. Indeed, any entitlement that
you may have to the requested record has no basis in Delaware's FOIA.

Based upon the foregoing, it is our determination that Laurel did not violate FOIA in
connection with your January 24, 2018 FOIA request.[2]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Allison E. Reardon, State Solicitor

cc: James F. Waehler (via email)

[1] Your Reply included two separate email correspondences.

[2] We note that you also allege discovery violations and misconduct on the part of certain
individuals. However, as those allegations are outside the scope of FOIA, they are not addressed
herein. You may wish to consult with an attorney regarding those allegations if you have not done
so already.