November 16, 2004
Civil Division-Kent County (739-7641)
Ms. Mary Allen
The News Journal
950 W. Basin Road
P.O. Box 15505
Wilmington, DE 19850
Re: Freedom of Information Act Complaint Against New Castle County
Dear Ms. Allen:
Our Office received your Freedom of Information Act (“FOIA”) complaint on September 13, 2004 alleging that New Castle County (“the County”) violated the public records requirements of FOIA by not providing you with a copy of a county police accident report from an incident that occurred on Friday, November 30, 2001 at 11:35 p.m. on Yorklyn Road.
By letter dated September 14, 2004, we asked the County to respond to your complaint within ten days. We received the County’s response on September 22, 2004. The County contends that the accident report is exempt from disclosure under FOIA because: (1) the report pertains to pending litigation; and (2) the report is part of an investigative file.
FOIA requires that “[a]ll 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.” 29 Del. C. § 10003(a).
FOIA exempts from disclosure “[a]ny records pertaining to pending or potential litigation which are not records of any court.” Id. §10002(g)(9).
FOIA exempts from disclosure “[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.” Id. §10002(g)(3).
FOIA exempts from disclosure “[a]ny records specifically exempted from public disclosure by statute or common law.” Id. §10002(g)(6).
A. Pending Litigation
The County provided us with a copy of the complaint in Tobin v. Gordon et al., C.A. No. 04-1211 (D. Del., filed Sept. 2, 2004). According to the County, the police report you requested pertains to the allegations in the complaint: (1) that the defendants retaliated against the plaintiff for testifying before a federal grand jury; and (2) “that defendants covered up the fact that Freebery’s son, Patrick Duffy, was involved in a hit-and-run motor vehicle accident on Friday, November 30, 2001 at 11:35 p.m.”
FOIA’s pending/potential litigation exemption is intended to prevent litigants from using “FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.” Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003) (Slights, J.). The exemption “turns on the identity of the requestor and the purpose of the request.” Att’y Gen. Op. 03-IB21 (Oct. 6, 2003). The exemption applies when “[i]t is exclusively about litigators and litigants looking for materials that might help them in court.” Office of the Public Defender v. Delaware State Police, Del. Super., C.A. No. 01C-09-208 (Silverman, J.).
Neither you nor The News Journal is a party or potential party to the civil rights litigation between Lieutenant Henry V. Tobin, III and the County. The County, therefore, cannot invoke the pending litigation exemption under FOIA to deny you public records that may have some nexus to the civil rights litigation because you are not a litigant, and there is no evidence that you are trying to use FOIA to circumvent the civil discovery rules.
B. Investigative File
The County is correct that the accident report you requested is exempt from disclosure under FOIA as an investigative file. See 29 Del. C. § 10002(g)(3). In Att’y Gen. Op. 01-IB04 (Feb. 27, 2001), we determined that uniform collision reports compiled by the New Castle County Police Department were exempt from disclosure under FOIA. “These traffic reports are investigative files used for civil or criminal law enforcement purposes. In particular, the reports are used in the investigation and criminal prosecution of drunk driving cases, and in administrative proceedings by the Division of Motor Vehicles to suspend or revoke a drivers’ licenses.”
C. Records Specifically Exempted by Other Statute
Although the County did not claim this exemption, we determine that the accident report you requested is exempt from disclosure by a statute other than FOIA (the motor vehicle code).
In Att’y Gen. Op. 02-IB04, we observed that traffic reports must be furnished to the Department of Public Safety, and that such reports “shall be for the information of the Department of Public Safety and shall not be open to public inspection.” 21 Del. C §313(b). In Jacobs v. City of Wilmington, C.A. No. 18679, 2002 WL 27817 (Del. Ch., Jan. 3, 2002) (Strine, V.C.), the Chancery Court held that traffic accident reports compiled by the Wilmington Police Department were exempt from disclosure under FOIA. The Court did not address the investigative file exemption, but held that Section 313(b) of Title 21 of the Delaware Code exempted traffic accident reports from disclosure under FOIA as “records specifically exempted from public disclosure by statute.” 29 Del. C. §10002(g)(6). “[B]ecause the reports are specifically exempted by the statutory scheme described in Chapters 42 and 3 of Title 21 of the Delaware Code, they are not public records under FOIA per 29 Del. C. §10002(g)(6).” 2002 WL 27817 at p.5.
For the foregoing reasons, we determine that the County did not violate the open records requirements of FOIA by denying you access to the police accident report you requested. We determine that the traffic accident report that you requested is exempt from disclosure under Sections 10002(g)(3), 10002(g)(6), and 10002(g)(9) of FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Lawrence W. Lewis, Esquire
Deputy Attorney General
Dennis J. Siebold, Esquire
Acting County Attorney
Phillip G. Johnson