Written on: December 29th, 2015 in 10002(l) (3) Exemptions - Investigatory Files
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB13
December 29, 2015
VIA EMAIL AND US MAIL
The Cape Gazette
17585 Nassau Commons Blvd.
Lewes, DE 19958
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.” 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.”
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.” 
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.” 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.”
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[.]
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. 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. 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.
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. The Court held that where the report itself is exempt from disclosure under FOIA, the information in the report is likewise exempt. 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. 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. Records and information in an agency’s investigative files do not become public when the investigation ends.
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
Chief Deputy Attorney General
cc: Lisa Morris, Deputy Attorney General (by email)
 Letter from Melissa Steele to DDFS, dated October 13, 2015.
 Letter from Kimberly H. Chandler to Melissa Steele, dated October 26, 2015.
 We need not reach the argument regarding privacy rights.
 29 Del. C. §10002(l).
 29 Del. C. §10003(a).
 29 Del. C. §10002(l)(3).
 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.
 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).
 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.”).
 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).
 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.”).
 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
 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 . . . .”).
 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).