New Castle County - Civil Division
Mr. Philip A. Ceresini, III
1204 Spruce Avenue
Wilmington, DE 19805
RE: Freedom of Information Act Complaint
Against Town of Elsmere
Dear Mr. Ceresini:
In your letter dated July 13, 1999 (received by this Office on July 16, 1999), you alleged that the Town of Elsmere (the "Town") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by denying you access to public records. Specifically, you allege that the Town did not allow you to review documents police complaint file No. 99-188 relating to an unregistered motor vehicle parked in your driveway.
By letter dated July 23, 1999, we asked the Town to respond to this issue. By letter dated July 28, 1999, the Town answered stating that the information you asked to see is exempt from disclosure under FOIA under the "investigative file" exception. Alternatively, the Town claims that the records are protected under the "criminal file" and "intelligence file" exceptions.
For the reasons given below, we conclude that the exception for "investigative files" protects the requested records from disclosure.
Section 10003(a) of FOIA provides: "All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." Section 10002(d)(3) excepts from the definition of a "public record" "[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."
Although the statute refers to "pending" investigations, the Chancery Court has held that the "investigative file" exception to FOIA applies even after the file has been closed. See News-Journal Co.v. Billingsley, Del. Ch., 1980 WL 3043 (Nov. 20, 1980) (Hartnett, V.C.). This is especially true in cases where no criminal charges are filed. Moreover, the investigatory file exception applies to administrative agencies, not just criminal law enforcement agencies such as the police. See, e.g., Equitable Trust Co. v. State, Md. Spec. App., 399 A.2d 908 (1979) (State Human Relations Commission investigating charges of racial discrimination); State ex rel. McGee v. Ohio Board of Psychology, Ohio Supr., 550 N.E.2d 945, 947 (1990) (per curiam) (exception applied to "investigative activities of state licensing boards"). See also, Atty. Gen. Op. NO. 98IB-13.
The Town's Code Enforcement Officer is charged with investigating violations of the Elsmere Code ("Code") and enforcing, if necessary, through criminal prosecution, violations of the Code. Elsmere Code §34-13. There are, for example, criminal penalties for violations of Chapter 171 of the Code (Property Maintenance). See Elsmere Code §171-2C ("Any person who shall violate the provisions of this Code and Ordinance, or who shall fail to comply with any notice or order issued by the Code Official pursuant to the provisions of this Code, shall be guilty of a misdemeanor and, upon conviction, shall be subject to a fine. . . or imprisonment for not more that thirty (30) days, or both...")
The Code Enforcement Office is the kind of investigative agency whose files FOIA exempts from disclosure. Accordingly, the complaint of Code violations which you have asked to review are not "public records" for purposes of FOIA. This investigative file exception applies whether or not the investigating agency decides "to file charges." McGee, supra. Indeed, the 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." Id. In addition, protecting the identity of witnesses to uncharged violations serves an important government interest in the reporting of possible violations by citizens. Revealing the names of witnesses in uncharged complaints may have a chilling effect on enforcement by discouraging witness participation. If the investigation results in criminal charges, then that becomes a matter of public record and you may have access to whatever criminal records are available through the courts or required under the Constitution. Any individual who is charged has the right to confront witnesses whose testimony is used in a criminal prosecution. U.S. Const. Amend. 6. It is not necessary to identify a witness before trial. United States ex rel. Herhal v. Anderson, 334 F. Supp. 733 (D.Del. 1971)
Because we have determined that the exception for "investigative files" excludes the requested records from production under FOIA, it is unnecessary to address the alternative exceptions of "criminal files" and "intelligence files."
For the foregoing reasons, we determine that the Town did not violate FOIA by denying you access to public records.
Very truly yours,
Sherry V. Hoffman
Deputy Attorney General
Michael J. Rich
cc: The Honorable M. Jane Brady, Attorney General
Edward M. McNally, Esquire
Mr Philip G. Johnson, Opinion Coordinator
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