Can a city withhold a police department efficiency report because officers spoke candidly during confidential interviews?

Official title

99-IB02: FOIA Complaint Against City of New Castle

Plain-English summary

A resident asked the City of New Castle for a full copy of a consultant's report evaluating the management and operational efficiency of the police department, and the city gave her only the report's general findings, not the full document. The city argued the report was exempt as a "personnel file," but the AG disagreed with that specific label, since the city itself admitted the report wasn't a formal personnel file. Even so, the AG found a different, broader shield applied: the common law right of privacy, which FOIA separately protects. The report was built from candid interview summaries with police officers discussing sensitive topics like the fairness of discipline and department morale, the kind of testimony officers likely wouldn't have given honestly if they knew it could become public and expose them to retaliation or controversy. Because the personal, candid material was woven throughout the report rather than confined to a few identifiable sections, the AG found it couldn't be redacted in a way that would let the rest through, so the city was entitled to withhold the entire document. The AG declined to weigh in on two side issues: whether the city followed proper procedures in commissioning the report (a municipal-law question outside the AG's authority) and whether the city had to disclose the report's cost, since the resident hadn't actually requested records showing that cost.

Currency note

This opinion was issued in 1999. 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

Q: If a document isn't a formal "personnel file," can it still be withheld from a public records request?
A: Yes, according to this opinion. The AG found the report here wasn't a personnel file, but the common law right of privacy, a separate FOIA exception, still protected it because of the candid, personal nature of the interview testimony it contained.

Q: Why would candid interviews with police officers be protected from disclosure?
A: The AG reasoned that if officers' identities and testimony weren't protected, few people would be willing to speak candidly about sensitive topics like discipline and morale for fear of controversy or retaliation, undermining the value of that kind of internal review.

Q: If part of a report is private and part isn't, does the government have to release the non-private parts?
A: Not always. The AG found that when protected information is inextricably woven throughout a record rather than confined to separable sections, it's appropriate to withhold the entire document rather than attempt a partial redaction.

Q: Can someone use a FOIA complaint to challenge whether a city followed proper procedures in hiring a consultant?
A: No, according to this opinion. The AG found questions about the city's procurement or budgeting process fall under municipal law, which is outside the Attorney General's FOIA review authority.

Background and statutory framework

The dispute concerned a police department efficiency report the City of New Castle withheld in full, disclosing only its general findings. The city first argued the report qualified as a "personnel file" exempt under 29 Del. C. Section 10002(d)(1), which the AG rejected given the city's own concession that it wasn't a formal personnel file. The AG instead found the report protected under Section 10002(d)(6)'s exception for records "exempted from public disclosure by statute or common law," applying The News Journal Co. v. Billingsley for Delaware's recognized common law right of informational privacy and its rationale that protecting witness candor serves the public interest in effective internal review. Relying on State ex rel. Martin v. City of Cleveland for the principle that a record may be withheld in its entirety when protected material is inextricably intertwined with the rest of the document, the AG found the interview-based report could not be meaningfully redacted and upheld the city's withholding of the full report.

Citations and references

Statutes:

• 29 Del. C. Section 10002(d)(1), personnel file exception (found not to apply to this report)
• 29 Del. C. Section 10002(d)(6), exception for records exempt by statute or common law, including the common law right of privacy

Cases:

• The News Journal Co. v. Billingsley, 1980 WL 22024 (Del. Ch. Nov. 20, 1980), recognizing a common law right of informational privacy under FOIA
• State ex rel. Martin v. City of Cleveland, 1992 WL 2861 (Ohio Ct. App. Jan. 8, 1992), on withholding an entire record when protected information cannot be separated from the rest

Source

• Landing page: https://attorneygeneral.delaware.gov/1999/04/16/99-ib02-foia-complaint-against-city-of-new-castle/

Original opinion text

April 16, 1999

Civil Division-Kent County (739-7641)

Mrs. Charlotte Houben

745 West 11th Street

New Castle, DE 19720

Re: Freedom of Information Act Complaint

Against City of New Castle

Dear Mrs. Houben:

By letter dated February 15, 1999 (received by this Office on February 18, 1999), you alleged that the City of New Castle had denied your request to copy a consultant’s report on the management and operational efficiency of the New Castle City Police Department. The issue is whether this document is a “public record” as defined by the Delaware Freedom of Information Act (“FOIA”).

By letter dated February 25, 1999, we asked the City to respond to your complaint within ten days. Because of other scheduling commitments, the City Solicitor asked for an extension of time until March 15, 1999 to respond to your complaint, which we granted.

In its letter of March 15, 1999, the City acknowledges that it denied your request for a copy of the report, but did send to you, under cover of letter dated February 25, 1999, a copy of the General Findings from the report. The City claims that the report is not subject to disclosure under FOIA because it is a “personnel file . . . the disclosure of which would constitute an invasion of personal privacy.” 29 Del. C. Section 10002(d)1). The City also relies on the FOIA exception for records “exempted from public disclosure by statute or common law.” Section 10002(d)(6). See The News Journal Co. v. Billingsley, Del. Ch., 1980 WL 22024 (Nov. 20, 1980) (Hartnett, V.C.) (recognizing a common law right of informational privacy).

According to the City, the report consists of a synopsis of summaries of interviews with police officers. As reflected in the General Findings, the police officers were asked to speak candidly about various areas of law enforcement, including the fair administration of discipline and morale.

We do not agree with the City that the report falls within the “personnel file” exception to FOIA. Even the City admits that the report “does not constitute a formal personnel file.” We agree, however, that the common law right of privacy in this case outweighs the public’s right to know. If the anonymity and testimony of the police officer witnesses were not protected, “[t]he result would be that few individuals would come forth to embroil themselves in controversy or possible recrimination . . . .” Billingsley, supra at p. 2. We also find that the report cannot be meaningfully redacted. “[W]hen protected information is inextricably intertwined with the rest of the record, it is appropriate to withhold the entire record.” State ex rel. Martin v. City of Cleveland, Ohio App., 1992 WL 2861, at p. 2 (Jan. 8, 1992).

Your complaint questions whether the City followed appropriate procedures in commissioning the consultant’s report. That is a matter of municipal law which is outside the jurisdiction of this Office. You also ask whether the City can “refuse to advise its citizens of the cost of such an action?” You do not allege that you have asked to inspect and copy any public records which might reflect the cost of the consultant’s report. If they exist and are not otherwise privileged, then they may be subject to FOIA, but we do not take a position on that issue at this time.

For the foregoing reasons, we conclude that the City of New Castle did not violate the public records requirements of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Michael J. Rich

State Solicitor

cc: M. Jane Brady

Attorney General

Daniel F. Wolcott, Jr., Esquire

City Solicitor

Phillip G. Johnson

Opinion Coordinator

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