Delaware Department of Justice
Attorney General
Kathy Jennings

16-IB02 1/14/2016 FOIA Opinion Letter to Mr. Michael Dworiak re: FOIA Complaint Concerning Bethany Beach


Attorney General Opinion No. 16-IB02

January 14, 2016

Michael Dworiak, Editor-in-Chief
Delaware Police News
Re:       Petition Alleging FOIA Violation by the Town of Bethany Beach
Dear Mr. Dworiak:
The Delaware Department of Justice (“DOJ”) received your letter alleging that the Town of Bethany Beach (the “Town”) violated the public records provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”).  We treat this letter as a petition for a determination of whether a violation of FOIA has occurred or is about to occur (the “Petition”).  29 Del. C. § 10005(e).  For the reasons detailed below, we conclude that the Town did not violate FOIA when it refused to produce “the completed internal affairs investigations statistical summaries for the years 2011 through 2014.”


On June 3, 2015 you requested from the Town “copies of Bethany Beach Police Department’s policies and procedures related to internal affairs investigations, discipline and code of standards or conduct and the completed internal affairs investigations statistical summaries for the years 2011 through 2014.”  On June 10, 2015, the Town responded by producing the policies and procedures, but the Town denied your request for the internal affairs investigations statistical summaries.  In support of the denial, the Town cited the small size of its police department, the Law Enforcement Officers’ Bill of Rights 11 Del. C. § 9200, et seq.  (“LEOBOR”), and the privacy and security concerns of its officers.
You advised the Town’s counsel that the Bethany Beach Police Department Policy (“Department Policy”) requires the Chief of Police to create an annual statistical summary, and that this summary be made available to the public upon request.[1]  The Town again denied the request for the statistical summaries.
We received the Petition on or about June 10, 2015.  The Petition requests that we determine whether the Town violated FOIA when it refused to disclose the statistical summaries which are deemed public by the Town’s Department Policy.  The Petition also challenges the Town’s reliance on the LEOBOR because the statistical summaries “do not contain any specific information from internal affairs investigation or identify members of the agency by name.”
Upon receipt of your Petition, we forwarded it to the Town’s counsel for a response.  The Town denied that FOIA required the production of the summaries.  The Town argued that due to the small size of its police department, the disclosure of the statistics would result in the identification of officers involved in internal affairs investigations in a manner that would violate LEOBOR.  Specifically, the Town referenced the LEOBOR’s requirement that all records compiled in investigations of law enforcement officers shall be confidential and shall not be released to the public.[2]  The Town also argued that the summaries are exempt from disclosure pursuant to 29 Del. C. §10002(l)(17)(a)(b) because production of the statistics would compromise “the specific and unique vulnerability assessments” of the department.[3]


FOIA defines a “public record” as “information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes.”[4]  Pursuant to 29 Del. C. §10003(a), “[a]ll public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate body,” and “[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen.”[5]
The section 10003(a) mandate to provide access to public records is limited by sections 10003(h)(1) and (2).  Specifically, a public body is permitted to deny access to records, but must “indicate the reasons for the denial.”[6] While section 10003(h)(2) does not require a public body to cite a specific exemption, Delaware courts have determined that records must be made available for public inspection unless FOIA provides an exception to the public right of access.[7]  Additionally, “FOIA makes clear that the burden of proof rests upon the custodian of records to justify the denial of access to the records.”[8]  Therefore, even though a public body is not required to cite an exemption to explain the denial of records, any denial of records must be authorized by FOIA.[9]


The question presented is whether the Town violated FOIA when it denied your request for the police department’s statistical summaries of internal affairs investigations. The Town argues that the summaries are exempted from disclosure by 29 Del. C. §10002(l)(6)[10] because the LEOBOR prohibits the disclosure to the public of “all records compiled as a result of any investigation subject to the provisions of [LEOBOR].”[11]
For purposes of our investigation, we reviewed the summaries in camera.  Based on our review, we conclude that the summaries were derived from records documenting internal affairs complaints against identified police officers, investigations of the actions of identified police officers, and the outcomes of internal affairs investigations relating to identified police officers.[12] Thus, we determine whether the summaries are also protected from disclosure by the LEOBOR and thus exempted from FOIA’s definition of “public record.”[13]
“The LEOBOR was passed in 1985 to provide uniform procedural rights to officers under investigation by their own departments” and “[s]ection 9200(c) sets forth the rights of police officers under investigation for disciplinary purposes.”[14] “[T]here is a strong public policy expressed in a state statute favoring the confidentiality of police personnel records . . . That public policy weighs heavily in favor of providing “confidential” status to information demanded from police personnel files.”[15]  For example, “internal employee disciplinary hearings are excepted from public disclosure under Delaware’s Freedom of Information Act.”[16]
We conclude that the summaries are records generated pursuant to an internal affairs investigation and are therefore confidential under the LEOBOR and the case decisions interpreting LEOBOR.[17]   For that reason, a public body may withhold such records by citing the exemption set forth at 29 Del. C. §§ 10002(l)(6).
The Petition also argues that because the Department Policy requires the public disclosure of the summaries, the Town cannot rely on LEOBOR to prohibit their disclosure.  We disagree.  While the Town’s attempt at transparency is generally to be commended, the policy cannot prevail where it is at odds with a Delaware statute.  It is a “well settled rule that a municipality cannot act in conflict with state laws. . . [A] municipal ordinance which conflicts with a state statute is always invalid because the municipality is inferior and subordinate to the legislative power of the State.”[18]


We conclude that Delaware’s Law Enforcement Officer Bill of Rights (11 Del. C. §9000, et seq.) requires that the Town maintain the confidentiality of the summaries of internal affairs investigations.  We further conclude that the Town did not violate FOIA when it refused to produce the summaries.
Very truly yours,
/s/ Robert W. Willard
Robert W. Willard
Deputy Attorney General
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:        James E. Liguori, Esq.
[1] Dewey Beach Police Department Policy Number 52.1.1, 4(K).
[2] See 11 Del. C. § 9200(c)(12).
[3] Because we conclude that the Town did not violate FOIA on different grounds, we do not address whether the Town properly relied on this exemption.
[4] 29 Del. C. §10002(l).
[5] 29 Del. C. §10003(a).
[6] Id.
[7] See Gannett Co. v. Delaware Criminal Justice Info. Sys., 768 A.2d 508, 511 (Del. Super. 1999) aff’d 765 A.2d 951 (Del. 2000) (“In order to achieve [a clear and comprehensive policy of disclosure in order to ensure government accountability], FOIA requires the disclosure of all ‘public records’ as provided by § 10002(d).”); Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 781 (Del. Super. 1995) (holding that a public body’s records are available for inspection by the public unless they fall within any of the exceptions to the term “public record”).
[8] Mell v. New Castle County, 835 A.2d 141, 146 (Del. Super. 2003). See also 29 Del. C. §10005(c).
[9] See Guy, 659 A.2d at 781.
[10] Exempting from disclosure “[a]ny records specifically exempted from public disclosure by statute or common law.”
[11] See 29 Del. C. §9200(c) (12) (“Whenever a law-enforcement officer is under investigation or is subjected to questioning for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or questioning shall be conducted under the following conditions: . . . (12) all records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure shall be and remain confidential and shall not be released to the public.”).
[12] According to the Town, an internal affairs investigation generally focuses on the conduct of a police officer to determine if the officer has violated department policies or otherwise acted improperly. 
[13] See 29 Del. C. §10002(l)(6).
[14] Brittingham v. Town of Georgetown, 113 A.3d 519, 525 (Del. 2015).
[15] Reyes v. Freeberry, 2005 WL 3560724, at *6 (D. Del. 2005).
[16] Chudzik v. City of Wilmington, 809 F. Supp. 1142, 1151, fn. 23 (D. Del. 1992).
[17] See, e.g., Miller v. State, 2010 WL 2861851, at *2 (Del. Super. July 16, 2010); Bailey v. City of Wilmington, 1997 WL 557555, at *3 (D. Del. Aug. 14, 1997).
[18] See 4th Generation Ltd. v. Board of Adjustment of City of Rehoboth, 1987 WL 14867, at *8 (Del. Super. Jul, 16, 1987) (“In the event of a conflict, however, the Act supersedes any inconsistent ordinance to the extent of the inconsistency.”); see also DiSabatino v. Ellis, 184 A.2d 469, 427 (Del. 1962) (citing general proposition that a local ordinance or regulation is not valid if it conflicts with a statute relating to the same subject).

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