Can a Delaware reporter FOIA the police interview transcripts of teens arrested for car theft to learn about their motives?

Plain-English summary

Cape Gazette reporter Melissa Steele asked the Delaware Department of Safety and Homeland Security (DSHS) for "investigative documents with interviews of the [teens]" who were arrested in connection with a car theft in New Castle County. She wanted to understand the teens' motivation. DSHS denied under § 10002(o)(3) (investigatory files), § 10002(o)(6) (statutory/common-law exemption), and 11 Del. C. chapters 85 and 86 (police records).

Steele petitioned, arguing the public interest in understanding why teens steal cars outweighed any concern. She emphasized she was not seeking the teens' identities, only motivation information.

The AG affirmed the denial in a short opinion. The request sought "investigative documents" compiled in connection with the teens' arrests, and FOIA exempts "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes." The opinion found it "clear on the face of this request that the records you seek are exempt from FOIA under the investigatory files exemption." Because the exemption was clear on the face of the request, DSHS did not have to state under oath the efforts it took to locate responsive records. Steele's argument that she sought only the teens' motivation, not their identities, did not change the analysis; the records themselves are investigatory files.

What this means for you

If you are a journalist or researcher covering juvenile crime

The opinion treats the investigatory-files exemption as a categorical one: it holds the requested investigative documents are "not public records and are not required to be disclosed," and that Steele's stated public-interest purpose did not overcome it. The opinion did not address any alternative routes to the information; it decided only that DSHS could withhold the investigative documents she requested.

If you handle FOIA for a Delaware law-enforcement agency

The opinion confirms that when a request is "clear on its face that the records sought are not subject to FOIA," the public body "need not state under oath the efforts, and results of those efforts, to determine whether there are responsive records." DSHS denied the request citing § 10002(o)(3), § 10002(o)(6), and 11 Del. C. chapters 85 and 86, and the opinion held that was sufficient because the investigatory-files exemption was clear on the face of the request.

If you are a juvenile-justice or victims-rights advocate

The opinion holds that investigative documents compiled in connection with the arrests are exempt under § 10002(o)(3). It notes DSHS's position, which it accepted, that "the investigatory files exemption attaches when the public body is made aware of a potential issue and the exemption survives after the investigation is completed."

Common questions

Q: Why did the exemption apply even though Steele said she did not want identifying information?
A: The opinion looks at the records themselves, not the requester's stated purpose. The records she sought were "investigative documents" compiled in connection with the arrests, which fall within § 10002(o)(3) regardless of what she intended to use them for.

Q: Did the public-interest argument carry any weight?
A: No. Steele argued the request was a matter of significant public interest, but the opinion found the records categorically exempt and did not weigh public interest against the exemption.

Q: Does the exemption still apply after an investigation is finished?
A: According to DSHS's position, which the opinion accepted, the exemption "attaches when the public body is made aware of a potential issue and the exemption survives after the investigation is completed."

Q: Did DSHS have to file a sworn affidavit to justify the denial?
A: No. The opinion holds that when a request is "clear on its face" that the records are exempt, the public body need not state under oath the efforts it took to find responsive records.

Q: What is the Cape Gazette?
A: The opinion identifies Melissa Steele as a reporter with the Cape Gazette, a Delaware newspaper. She filed the request about teens arrested in connection with a car theft in New Castle County.

Background and statutory framework

Section 10002(o)(3) is the investigatory-files exemption the opinion applied. The opinion quotes it as exempting "[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."

The opinion applies the "clear on the face of the request" standard for when a public body can deny without a sworn affidavit. Because the request sought investigative documents compiled in connection with the teens' arrests, the opinion held the exemption was clear on the face of the request and DSHS did not need to supply an affidavit.

DSHS's denial also cited § 10002(o)(6) and Title 11, chapters 85 and 86 (police records), but the opinion resolved the matter on the investigatory-files exemption in § 10002(o)(3).

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions and exemptions)
• 29 Del. C. § 10005 (Enforcement; burden of proof)
• 11 Del. C. ch. 85 (Bureau of Identification)
• 11 Del. C. ch. 86 (Police records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/10/10/23-ib29-10-10-2023-foia-opinion-letter-to-melissa-steele-re-foia-complaint-concerning-the-delaware-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/10/Attorney-General-Opinion-No.-23-IB29.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB29
October 10, 2023

VIA EMAIL
Melissa Steele
Cape Gazette
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Safety and Homeland Security

Dear Ms. Steele:

We write regarding your correspondence alleging that the Delaware Department of Safety and Homeland Security ("DSHS") 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that the DSHS did not violate FOIA by denying access to these requested records.

BACKGROUND

On August 22, 2023, you submitted a FOIA request to the DSHS about teens who were arrested in connection with a car theft in New Castle County. You sought "investigative documents with interviews of the [teens] that explain their motivation." After your request was sent for legal review on September 12, 2023, the DSHS denied this request that same day, stating that "police reports and investigatory files compiled for civil or criminal law-enforcement purposes . . . are exempt from FOIA pursuant to 29 Del. C. § 10002(o)(3), 29 Del. C. § 10002(o)(6) and 11 Del. C. Ch. 85 and 86." This Petition followed.

In the Petition, you allege that the request should be granted, because you disagree with DSHS's interpretation of the law. You argue fulfilling your FOIA request is a matter of significant public interest. Further, you assert that you are not seeking identification of these teens, merely more information about why these teens stole cars. You believe this information should be available to you without the need for a FOIA request.

The DSHS, through its legal counsel, replied to the Petition. The DSHS maintains that the investigative information you seek is categorically exempt from FOIA, and records that fall under one of the exemptions to FOIA are not public records and are not required to be disclosed. The DSHS states that the Court of Chancery determined that the investigatory files exemption attaches when the public body is made aware of a potential issue and the exemption survives after the investigation is completed. As police reports and investigatory files are exempt from FOIA, the DSHS argues that its response to this request was appropriate.

DISCUSSION

The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. However, when a request is clear on its face that the records sought are not subject to FOIA, to meet its burden, a public body need not state under oath the efforts, and results of those efforts, to determine whether there are responsive records. In this case, the request sought from the DSHS "investigative documents" compiled in connection with the teens' arrests. FOIA exempts "[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." We determine that it is clear on the face of this request that the records you seek are exempt from FOIA under the investigatory files exemption and are not required to be disclosed.

CONCLUSION

For the foregoing reasons, we determine that the DSHS did not violate FOIA by denying access to the requested records.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc: Lisa M. Morris, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General