Opinion
D0C.A. No.: 01C-09-208-FSS.
Submitted: June 6, 2002. Oral Argument Held: November 25, 2002.
Decided: March 31, 2003.
Upon Defendants' Motion to Dismiss — GRANTED.
Brian J. Bartley, Esquire and Kathryn van Amerongen, Esquire, Wilmington, Delaware. Attorneys for Plaintiffs.
W. Michael Tupman, Deputy Attorney General, Department of Justice, Dover, Delaware. Deputy Attorney General for Defendants.
OPINION
Delaware's office of Public Defender and one of its Assistant Public Defenders, putatively in both her official and individual capacities, asked the State Police under the Freedom of Information Act to release standard operating procedures and training manuals. Citing several of the Act's enumerated exceptions, the Superintendent of the State Police refused to release the materials. The office of Public Defender and the Assistant then filed this declaratory judgment and writ of mandamus proceeding, presumably under the Act's enforcement provision.
Del. C. Ann. tit. 29, § 10001 — 10005 (1997 Supp. 2002).
Del. C. Ann. tit. 29, § 10005 (1997 Supp. 2002).
The Superintendent and the State Police have moved to dismiss on the ground that the office of Public Defender and the Assistant Public Defender lack standing to make FOIA requests. That is because they are not "citizens," and the Act specifically applies only to "citizens." The Superintendent and the State Police also argue that the reason why the Public Defender wants the materials is to use them on behalf of its clients, who by definition are involved in pending or potential litigation, and the Act exempts from disclosure: "Any records pertaining to pending or potential litigation which are not records of any court."
As explained below, while it goes too far to call this a tempest in a teapot, this case does not present a titanic clash between the public's right to know and any attempt by the government to operate in secret. The threshold issue this case presents merely concerns the Public Defender's status under the Act. Ultimately, that has little bearing on the public's access to the manuals. In other words, if the office of the Public Defender cannot obtain the State Police materials, that does not mean that ordinary citizens cannot get them.
I.
Delaware's Freedom of Information Act begins with a declaration of policy:
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, [this Act] is adopted, and shall be construed.
Del. C. Ann. tit. 29, § 10001 (1997).
Toward these ends, the Act further provides, "All public records shall be open to inspection and copying by any citizen of the State . . . ."
Del. C. Ann. tit. 29, § 10003 (1997).
It is agreed that the State Police manuals are "public records." And there is no room for disputing that the Act only favors citizens. The policy behind the Act specifically refers only to "citizens of this State." As quoted above, the policy is that "our citizens shall have the opportunity to observe the performance . . . and to monitor the decisions" of public officials, and that "citizens have easy access to public records . . . ." The policy is intended "to further the accountability of government to the citizens of this State." After its declaration of policy, the Act's first operative provision declares that public records shall be open to inspection and copying by "any citizen of the State." In its other sections, including its enforcement provisions, the Act continues to use the term "citizen." There is no provision in the Act giving anyone other than Delaware citizens access to public records. The General Assembly's meaning is clarion. The Act is expressly meant to benefit Delaware's citizens, and only Delaware citizens.
Del. C. Ann. tit. 29, § 10002(d) (1997 Supp. 2002).
See e.g. Del. C. Ann. tit. 29, § 10005 (1997 Supp. 2002).
The legislature could have made public records available to "anyone," or to "persons," or to the "public," or to "residents," and so on. Instead, the General Assembly chose to make the Act's access provisions applicable only to any "citizen." The General Assembly's approach is consistent throughout the Act and obviously is deliberate. Because the Act does not provide its own definition of citizen, however, the court must give the term meaning here. But in the process, the court cannot expand or limit the Act's intended scope. The Act only works for citizens, and it only serves specific purposes.
II.
Under Delaware's Model Defender Act: "There is created the office of Public Defender." Its operations are funded through the state budget and other government grants. The Public Defender is charged by law with the duty to represent indigent defendants in criminal cases. The office of Public Defender has no other duties and it exists for no other purpose. The office of the Public Defender has no watchdog functions. It is not concerned about governmental operations and efficiency, beyond the office's own internal workings. While the office of the Public Defender is concerned that our society remain free and democratic, the office vindicates that concern by representing individual, criminal defendants.
Del. C. Ann. tit. 29, § 4601 (1997).
Neither the Act, nor the Delaware Code defines "citizen." The word's etymology and dictionary definitions are somewhat circular for present purposes. According to Webster's dictionary, for example, a citizen is:
Webster's Unabridged Dictionary Of The English Language (2001).
1. a native or naturalized member of a state or nation who owes allegiance to its government and is entitled to its protection (distinguished from alien) . . . . 4. A civilian as distinguished from a soldier, police officer, etc.
Despite the formal definition's circularity, it cannot be said that a governmental entity or agency, like the office of Public Defender, fits under the formal definition of civilian. There is room to argue, perhaps, that some fictitious persons might have the formal definition's attributes. But that argument cannot be stretched to non-civilians and creatures of the state government, itself. In any event, the formal definition is not helpful to the office's argument. Failing to find a completely satisfying answer in the dictionary, the court will use a functional analysis to define the term citizen as it is used in the Act.
III.
Why the office of the Public Defender wants the State Police materials brings into relief the Public Defender's nature and helps show how, at least in this instance, the Public Defender does not qualify as a citizen. Moreover, examining the Public Defender's reasons for seeking the State Police materials confirms that the office of the Public Defender is not a citizen in terms of the Act's spirit.
There is no reason why the Public Defender needs the State Police materials except to the extent that they might help the office's clients directly in court. Or, they could be indirectly helpful as training materials for assistant public defenders. But that training would serve only to make those lawyers better advocates for their clients, all of whom are in litigation with the State. So, whether the Public Defender needs the materials either to defend specific clients or to train assistant public defenders, the Public Defender's motive is litigation related, and not a means of advancing the Act's purposes. The Public Defender's FOIA request is not the request of a typical citizen trying to know what the government is up to. It is a law firm's request, made on behalf of litigants the law firm represents.
By the same token, releasing the materials to the Public Defender serves none of the Act's salutary purposes. While the Public Defender's clients mostly are Delaware citizens and while some of them might be especially curious about state police training and methods, their interest in the materials is not related to the public's right to know. Their legitimate interest concerns pending or potential litigation, which is exempt from the Act. Again, the point is that this case does not touch on the public's "right to know." It is exclusively about litigators and litigants looking for materials that might help them in court. And the legislature has made it clear that the Act is not intended to supplant, nor even to augment, the courts' rules of discovery.
In light of the above, it is apparent for present purposes that the office of the Public Defender is not a citizen under the Freedom of Information Act, either in name or spirit. And, therefore, the office is not entitled to seek enforcement of the Act. As also explained above, implicit in this conclusion is the alternative holding that if the Public Defender were entitled to use the Act, the request here concerns records pertaining to pending or potential litigation, and as such they are exempt from disclosure. In other words, even if the office of the Public Defender had standing under the Act, it is not entitled to these records.
In reaching its conclusions, the court has considered but is unconvinced by both sides' lead authorities. The State Police rely on Koyste v. Delaware State Police, which rejected a similar FOIA request by the federal public defender. Koyste holds without elaboration that the federal public defender is not a citizen for purposes of the Act. More importantly, Koyste turns on the fact that the FOIA request was on behalf of a specific litigant whose request for the State Police materials had been rejected by the federal district court judge presiding over the criminal litigation there. The decision here is consistent with Koyste, but the office of the Public Defender has a stronger position in this case.
2001 WL 1198950 (Del.Super.).
For its part, the Public Defender's best authority is Bryant v. Weiss, which comes from a divided Arkansas Supreme Court. Bryant holds that the Attorney General of Arkansas "acting in his official capacity with broad powers granted by statutes and . . . the Arkansas Constitution . . . for the purpose of ensuring that `public business' be performed in an open and public manner . . ." has standing under the Arkansas FOIA to seek records of calls to a government anti-fraud "hotline." Superficially, Bryant seems on point. It supports the Public Defender's position because the majority's opinion recognizes a public officer's standing under an Act that is similar to Delaware's. But that is were the similarity with this case ends.
983 S.W.2d 902 (Ark. 1998).
Id. at 905.
First, although Arkansas's Act is like Delaware's in that they both favor "citizens," the Arkansas law also refers to others. And under Arkansas law, "the words `citizen,' `public,'`person,' and `anyone,' are all used to describe the party empowered to invoke the [Arkansas] Act for its public purposes." The Delaware General Assembly was more consistent about the Delaware Act's focus. Second, as already mentioned, the Attorney General of Arkansas has a far wider statutory and constitutional mandate than does Delaware's Public Defender. Finally, the Arkansas Attorney General's FOIA request was intended to ferret out government corruption, which goes to the Act's essence. Thus, the majority opinion in Bryant is neither controlling, nor persuasive here.
Id. at 905.
IV.
Finally, the court does not recognize the Assistant Public Defender's presence in her personal capacity. The undisputed facts do not support the Assistant's personal claim to standing as an individual citizen. In the amended complaint the Assistant identifies herself as a citizen. But she also states: "At all times cited [in the amended complaint] she was acting on behalf of the office of the Public Defender." Furthermore, the Assistant made the original FOIA request on behalf of the office. And the Assistant did not pay the filing fee for this litigation.
It is obvious that the Assistant is asserting citizenship only to avoid the bar on her employer imposed by the Act's standing requirement. Moreover, the Assistant's avowed purpose, at least in part, is to advance the litigation position of her law firm's clients. The latter point does not imply that the Superintendent is free to question the motives of everyone who makes a FOIA request to the State Police. But here, the standing and litigation exemption issues are patent.
In closing, it may be that the Superintendent and the State Police will never give the manuals to anyone voluntarily. It remains to be seen, however, whether they fall under the Act's exemptions in every case. As suggested above, the seminal questions here were whether the office of the Public Defender is a "citizen" of Delaware for the Act's purposes, and whether the office was trying to use the Act impermissibly to obtain records "pertaining to pending or potential litigation."
V.
For the foregoing reasons, Plaintiffs are not entitled to relief and Defendants' Motion to Dismiss is GRANTED.
IT IS SO ORDERED.