PRINT VERSION: Attorney General Opinion No. 24-IB07 – Corrected

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 24-IB07

February 9, 2024

 

VIA EMAIL

Todd Austin
toddaustin0919@gmail.com

 

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

 

Dear Mr. Austin:

We write regarding your correspondence alleging that the Division of Delaware State Police of the Department of Safety and Homeland Security (“DSP”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“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 DSP did not violate FOIA by denying access to the requested records.

BACKGROUND

Between November 24, 2023 and November 26, 2023, you submitted four requests to the DSP seeking: 1) dash and body camera footage from a specified officer and his vehicle on August 16, 2023; 2) footage from Troop No. 7’s arraignment room and hallway on July 18, 2022; 3) body camera footage from two specified officers on July 18, 2022; and 4) body camera footage from six officers on July 18, 2022.  For each of these requests, you noted that the records involved a case and noted the case number.  On January 2, 2023, the DSP denied access to these requests, stating that the records were exempt pursuant to 29 Del. C. § 10002(o)(3) and (6).  This Petition followed.

In this Petition, you argue that these exemptions do not apply; rather, Section 10002(o)(3) only covers pending investigatory files.  As these cases have ended and you have been exonerated, you argue that these requested records should now be released.

The DSP, through its legal counsel, replied to your Petition on January 22, 2024.  The DSP contends that its response was appropriate, as the requests seek records related to your criminal matters, and the investigatory files exemption in 29 Del. C. § 10002(o)(3) continues to apply to the criminal investigatory files even after the investigations are closed.  The DSP asserts that to the extent that you were entitled to any records in connection with those cases, you had the ability to seek them during trial through the applicable rules of criminal procedure.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.^[1]  In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.^[2]  The DSP asserts that the investigatory files exemption in Section 10002(o)(3) applies, which 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.”  These requests seek various DSP investigatory records pertaining to the relevant criminal cases.  The investigatory files exemption is not limited to pending investigations and continues to apply after an investigation is closed.[3]  Thus, the requested records are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

CONCLUSION

For the foregoing reasons, we determine that the DSP 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:       Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

 

[1]           29 Del. C. § 10003(a).

[2]           29 Del. C. § 10005(c).

[3]           News-Journal Co. v. Billingsley, 1980 WL 3043, at *2-3 (Del. Ch. Nov. 20, 1980) (determining that the investigatory files exemption attaches as soon as a public body is made aware of a potential issue and the exemption survives after the investigation is completed); see also Del. Op. Att’y Gen. 17-IB47, 2017 WL 4652343, at *1 (Sept. 22, 2017);  Del. Op. Att’y Gen. 05-IB16, 2005 WL 2334345, at *2 (Jun. 22, 2005); Del. Op. Att’y Gen. 98-IB13, 1998 WL 910199, at *1 (Dec. 8, 1998).

 

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