Can a non-Delaware researcher obtain a database snapshot of Delaware's Online Wanted Person Review via FOIA?

Official title

18-IB54 12/5/2018 FOIA Opinion Letter to Johann Gaebler re: FOIA Complaint Concerning the Delaware Criminal Justice Information System

Plain-English summary

Johann Gaebler, a researcher with Stanford's Computational Policy Lab in California, asked the Delaware Criminal Justice Information System (DELJIS) for two things: first, database entries from the Online Wanted Person Review for June 2018; and after that was denied, a "current snapshot" of the Microsoft Access or SQL database backing the OWPR site. DELJIS denied the second request on September 27, 2018 on several grounds, including that Gaebler was not a Delaware citizen. He filed a FOIA petition with the AG, arguing the records existed, were public, and contained no statutory FOIA exemption that covered them.

The AG affirmed the denial on the citizenship ground alone. McBurney v. Young (2013) had upheld a citizen-only state FOIA statute against constitutional challenges, and the opinion noted that in Attorney General Opinion 16-IB20 and subsequent opinions the AG's office had adopted that reading. With the petitioner shown to be a non-Delaware citizen, the AG did not need to reach the "no such record exists," the "new record creation," or the 29 Del. C. § 10002(l)(17) exemption arguments DELJIS had also raised.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is DELJIS, and why was the Wanted Person database the target?

The Delaware Criminal Justice Information System administers shared criminal-justice data infrastructure. The Online Wanted Person Review is a public-facing portal listing outstanding warrants. The petitioner wanted a database snapshot, presumably to study the dataset structurally rather than search it one record at a time.

Why did citizenship decide the case?

29 Del. C. § 10003(a) limits FOIA access to "any citizen," which the AG had read as "any Delaware citizen" since 16-IB20. The United States Supreme Court in McBurney v. Young, 569 U.S. 221 (2013), upheld a similar Virginia statute against Privileges and Immunities Clause and dormant Commerce Clause challenges. With petitioner conceding (or not contesting) non-Delaware status, the denial held without reaching any other issue.

Did the AG say anything about whether the requested record existed?

DELJIS had argued the database snapshot did not exist as a static record and would require new-record creation. The AG noted those arguments but did not decide them, because the citizenship ground was independently sufficient.

What is the § 10002(l)(17) exemption that DELJIS cited?

Section 10002(l)(17) at the time covered certain criminal-justice records, and DELJIS argued the database fell within it. Again, the AG did not need to interpret the scope of (l)(17) here.

Could Gaebler get the data another way?

The opinion does not address alternatives. It decides only that a non-Delaware citizen cannot compel production through a FOIA request; it leaves untouched whatever other channels (research-data agreements or collaboration with state agencies) might exist outside FOIA.

Background and statutory framework

Delaware FOIA's citizen-only rule, as applied in this opinion, rests on:

• 29 Del. C. § 10003(a) (access to "any citizen").
• McBurney v. Young, 569 U.S. 221 (2013) (constitutional defense of citizen-only state FOIA statutes).
• Del. Op. Att'y Gen. 16-IB20 (2016) (adoption of McBurney for Delaware FOIA), which the opinion noted "and subsequent opinions" reaffirmed.

The opinion resolved the case on the citizenship ground and expressly declined to reach the "new record" and § 10002(l)(17) exemption questions DELJIS had also raised, since the threshold ground decided the matter.

Citations

• 29 Del. C. § 10002(l)(17) (cited by DELJIS; not decided)
• 29 Del. C. § 10003(a) (citizen-only access)
• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• McBurney v. Young, 569 U.S. 221 (2013)
• Del. Op. Att'y Gen. 16-IB20 (Sept. 30, 2016)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/12/07/18-ib54-12-5-2018-foia-opinion-letter-johann-gaebler-re-foia-complaint-concerning-delaware-criminal-justice-information-system/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/12/CDAG-Opinion-No.-18-IB54.pdf

Original opinion text

DEPARTMENT OF JUSTICE

MATTHEW P. DENN
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB54
December 5, 2018
VIA EMAIL
Mr. Johann Gaebler
Computational Policy Lab
Huang Engineering Center
Room 251
Stanford, CA 94305
[email protected]

RE:

FOIA Petition Regarding the Delaware Criminal Justice Information System
("DELJIS")

Dear Mr. Gaebler:
We write in response to your correspondence alleging that the Delaware Criminal Justice
Information System ("DELJIS") violated the Delaware Freedom of Information Act, 29 Del. C.
§§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination
pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about
to occur with regard to your records requests. For the reasons set forth below, we conclude that
DELJIS has not violated FOIA as alleged in your Petition.

BACKGROUND

On September 4, 2018, you submitted a FOIA request to DELJIS for the database entries
from the DELJIS Online Wanted Person Review available during June 2018. DELJIS responded
by letter that the requested records do not exist and are not in a static file. Additionally, DELJIS
noted that FOIA does not require a public body to compile information from various sources to
create a document or provide information in a question-and-answer format. You submitted a
second FOIA on September 21, 2018 in which you requested a "current snapshot of the Microsoft
Access or Microsoft SQL database(s) ('the database') forming the backend of the Delaware
Criminal Justice Information System's ('DelJIS') Online Wanted Person Review ('OWPR'; url:
https://pubsrv.deljis.delaware.gov/WantedPublic/)." Although it appears from the parties'
submissions that you did not receive it, DELJIS responded on September 27, 2018 denying this
request for several reasons, including that you appear not to be a citizen of Delaware. As the right
to access records under FOIA is not guaranteed for non-Delaware citizens, the request was denied
on that basis.

You sent a Petition to this Office alleging that DELJIS did not respond to your September
21, 2018 request and arguing the following: the requested records do exist; the records are public
by virtue of a statute designating the records as public; and there is no exemption under FOIA for
records which are "not static." You requested that DELJIS be enjoined to provide a response to
your September 21, 2018 request and provide the requested database snapshot.

On November 20, 2018, DELJIS submitted a letter ("Response") stating that DELJIS did,
in fact, respond to the September 21, 2018 request and provided a copy of the letter. The Response
argued that the request was properly denied because the requested records do not exist; FOIA does
not require DELJIS to create a new record, which DELJIS would have to do to create the
information requested; the requested records are exempt under 29 Del. C. § 10002(l)(17); and you
are not entitled to the records, as you appear not to be a Delaware citizen.

DISCUSSION

One of FOIA's primary purposes is to grant citizens access to public records. Specifically,
the statute provides that "public records shall be open to inspection and copying during regular
business hours by the custodian of the records for the appropriate public body" and that
"[r]easonable access to and reasonable facilities for copying of these records shall not be denied
to any citizen." DELJIS has provided a copy of its response of September 27, 2018, which
DELJIS's counsel affirmed was sent within the statutorily required time. The response denied
your records request, in part, as you did not appear to be a Delaware citizen. We also see evidence
from your filings that you are not a Delaware citizen. The United States Supreme Court case,
McBurney v. Young, affirmed that a citizens-only FOIA statute does not violate the Privileges and
Immunities Clause or the dormant Commerce Clause of the U.S. Constitution. In Attorney General
Opinion 16-IB20 and subsequent opinions, this Office accepted the reasoning of the McBurney
case and concluded that the Delaware's FOIA statute is applicable to Delaware citizens only.

Therefore, the denial of your September 21, 2018 request was appropriate on that basis, and we
need not address the remaining issues.

CONCLUSION

Thus, it is our determination that DELJIS has not violated FOIA as alleged.

Very truly yours,

Aaron Goldstein
Chief Deputy Attorney General

cc:

Lisa Morris, Deputy Attorney General
Dorey Cole, Deputy Attorney General