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Del. Op. Atty. Gen. 98-IB13 (Del.A.G.), 1998 WL 910199
Office of the Attorney General
State of Delaware
Opinion No. 98-IB13
December 8, 1998
RE: Freedom of Information Act Complaint Against Town of Laurel
*1 Mr. John Lopes
P.O. Box 694
Laurel, DE 19956
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.
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.). 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”).
*2 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.
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
Michael J. Rich
Del. Op. Atty. Gen. 98-IB13 (Del.A.G.), 1998 WL 910199
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