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December 8, 1998
Kent County - Civil Division
Mr. John Lopes
P.O. Box 694
Laurel, DE 19956
RE: Freedom of Information Act Complaint
Against Town of Laurel
Dear Mr. Lopes:
In your letter dated August 29, 1998 (received by this Office on
September 2, 1998), you alleged that the Town of Laurel (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
provide you with copies of notices sent out by the Code
Enforcement Officer from April 1, 1997 to March 31, 1998
regarding violations of the Housing Code.
By letter dated September 17, 1998, we asked the Town to respond
to this issue. By letter dated September 28, 1998, the Town
responded. The Town took the position that, since there are
potential criminal penalties for violations of the Housing Code,
the notices you asked to see are excepted from disclosure under
FOIA under the "investigative file" exception. Alternatively, the
Town claims that the records are protected by the common law
right of privacy.
On October 9, 1998, we asked the Town for further information to
support their legal position, which we received on October 12,
1998. The release of this decision was unfortunately delayed by
our inability to timely complete the necessary internal review
process which we follow for every FOIA complaint.
STATUTORY PROVISIONS
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."
OPINION
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.). 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").
The Town's Code Enforcement Officer is charged with investigating
violations of the Housing Code and enforcing, if necessary,
through criminal prosecution, violations of the Code. See Laurel
Code Section 87-11 ("The provisions of this chapter shall be
enforced by the Code Enforcement Officer."); Section 87-85
("Violations and penalties" -- violation of the Housing Code is a
"misdemeanor and, upon conviction thereof, shall be fined . . .
or imprisoned for a term not to exceed thirty (30) days, or
both").
If the Code Enforcement Officer has reason to believe that there
is a Housing Code violation, then notice must be given and an
opportunity to remediate. See Laurel Code Section 87-74. If the
owner does not remediate, then the Town Solicitor can seek
equitable relief (see Section 87-85.B.), or the Town can ask the
Attorney General's Office to prosecute the matter criminally.
According to the Town Solicitor, he has worked with the Attorney
General's Office on a number of occasions in the past for
criminal enforcement of Housing Code violations.
The Code Enforcement Officer is the kind of investigative agency
whose files FOIA excepts from disclosure. Accordingly, the
notices of Housing Code violations which you have asked to
inspect and copy 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.
If any particular investigation in which you are interested
resulted in criminal charges, then that becomes a matter of
public record. While a citizen could still be denied access to
the investigative agency's files under FOIA, the citizen may have
access to whatever criminal records are available through the
courts.
You raised three other issues in your complaint letter. Regarding
Issue 2, FOIA does not require a public body to advise a citizen
of his or rights under the statute to enforce the law. As for
Issue 3, as a general rule you are correct that the reason why a
citizen wants access to public records is not relevant, and that
public records must be made available for inspection during
normal business hours, not at the "convenience" of the public
body. On the other hand, we have determined in the past that a
public body can enact a rule or regulation requiring that an
appointment be made in advance to inspect and copy records.
As for Issue 4, you are also correct that, as a general rule, the
reason why a citizen wants access to public records is not
relevant (unless the personal privacy rights of other citizens
are involved). We decline, however, to render an advisory opinion
on Issues 3 and 4, since you either had access to the documents
you requested, or they are excepted from disclosure under FOIA.
Conclusion
For the foregoing reasons, we determine that the Town did not
violate FOIA by denying you access to public records.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED:
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
James F. Whaeler, Esquire
Chrystyna L. Savitz, Opinion Coordinator