Can a Delaware news outlet obtain crash data from DelDOT's Crash Analysis Reporting System if victim information is anonymized?

Official title

19-IB22 4/26/2019 FOIA Opinion Letter to Ms. Jeanne Kuang re: FOIA Complaint Concerning the Delaware Department of Transportation

Plain-English summary

Delaware Online reporter Jeanne Kuang requested specific fields from DelDOT's Crash Analysis Reporting System (CARS) covering 2016-2018: date, lat/long, cause or summary of crash, and any narrative information, with victim information anonymized. DelDOT denied the request on four grounds: (1) DSHS, not DelDOT, owns the data; (2) FOIA does not require new database queries; (3) the records are investigatory files under § 10002(l)(3); and (4) accident reports are not public records under 21 Del. C. § 321. Kuang argued she was requesting an extract, not a new record, that aggregated anonymized data should be treated differently from individual reports, and that DelDOT had released this kind of data to news outlets before.

The AG denied the petition on two grounds, expressly declining to reach the others.

1. 21 Del. C. § 313 requires DSHS to "tabulate and analyze such reports and publish annually, or at more frequent intervals statistical information based thereon," but provides that those reports "shall not be open to public inspection." Under § 10002(l)(6), records exempted from public disclosure by statute are not "public records," so § 313 keeps the data out of FOIA.
2. § 10002(l)(3) investigatory-files exemption independently applies. The AG stated that accident reports are considered investigatory files exempt from disclosure, and that these exemptions "are not eliminated by simply transferring the report information into the CARS database."

Having rested on those two grounds, the AG stated it "need not address the remaining arguments in the Petition," including the custodian and database-query arguments.

Currency note

This opinion was issued in 2019. 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

Why does 21 Del. C. § 313 block this?

The statute makes the accident reports DSHS tabulates and analyzes "not open to public inspection." FOIA at § 10002(l)(6) provides that records exempted from public disclosure by statute are not "public records." The AG read § 313 and § 10002(l)(6) together to remove the CARS data from FOIA's reach.

Did aggregation or anonymization change the result?

No. The petitioner requested specific fields from CARS with victim information anonymized and argued aggregate data should be treated differently. The AG concluded that the data was populated by the § 313 reports and that the exemptions "are not eliminated by simply transferring the report information into the CARS database."

Did the AG decide the database-query or custodian arguments?

No. DelDOT had also argued it was not the proper custodian and that extracting fields would be a database query FOIA does not require. Because the § 313/§ 10002(l)(6) ground and the investigatory-files ground each supported denial, the AG stated it "need not address the remaining arguments."

What about past releases to other reporters?

The petitioner pointed to past news articles using this kind of data. DelDOT argued it had not waived the applicable FOIA exemptions despite any past provision of the records. The AG did not reach the waiver question, resting on the two exemption grounds.

Background and statutory framework

The statutes that drive the result:

• 21 Del. C. § 313: requires DSHS to tabulate and analyze accident reports and publish statistical information at regular intervals, while providing that those reports "shall not be open to public inspection."
• 29 Del. C. § 10002(l)(6): records exempted from public disclosure by statute or common law are not "public records," which is the hook that brings § 313 into FOIA.
• 29 Del. C. § 10002(l)(3): the investigatory-files exemption, which the AG applied as an independent ground.
• 21 Del. C. § 321: cited by DelDOT as a fourth ground; the AG did not reach it.

DelDOT said the CARS database was populated by a DELJIS-controlled data feed from local law-enforcement accident reports, that DelDOT could not enter, remove, or modify the data, and that DSHS was the proper custodian. The AG did not decide the custodian question, having resolved the petition on the two exemption grounds. Footnote 4 records DelDOT's assertion that earlier releases occurred under a regulation repealed in January 2019.

Citations

• 29 Del. C. § 10002(l)(3) (investigatory-files exemption)
• 29 Del. C. § 10002(l)(6) (statutory-exemption carve-out)
• 29 Del. C. § 10005 (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• 21 Del. C. § 313 (DSHS accident-report confidentiality)
• 21 Del. C. § 321 (cited by DelDOT; not decided)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/04/30/19-ib22-4-26-2019-foia-opinion-letter-to-ms-jeanne-kuang-re-foia-complaint-concerning-the-delaware-department-of-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/04/Attorney-General-Opinion-No.-19-IB22-Re-issued.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNCIL
FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB22

April 26, 2019

VIA EMAIL
Ms. Jeanne Kuang
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Transportation

Dear Ms. Kuang:

We write regarding your correspondence alleging that the Delaware Department of Transportation (“DelDOT”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”) with respect to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that DelDOT appropriately denied your records request.

BACKGROUND

On March 13, 2019, you submitted a records request to DelDOT for the following documents:

[R]ecords of reported crashes in the calendar years 2016, 2017, and 2018 that are logged in DelDOT’s Crash Analysis Reporting System (CARS). For each crash I am requesting the following fields: date, geographical location (latitude and longitude), cause or summary of crash (examples of entries in this field should be “Primary Contributing Circumstance: Disregard Traffic Signal” or “Driver Action:
Ran Red Light”), and any narrative information attached, with victim information anonymized.1

1
Petition.

DelDOT denied your request for four reasons: 1) the data you requested is owned by the Delaware Department of Safety and Homeland Security (“DSHS”); 2) FOIA does not require DelDOT to convert data in a new format, create programming, or conduct a database search to comply with this FOIA request; 3) the data is exempt pursuant to 29 Del. C. § 10002(l)(3) as “investigatory files compiled for civil or criminal law-enforcement purposes;” and 4) accident reports are not public records pursuant to 21 Del. C. § 321. This Petition followed.

The Petition challenges DelDOT’s denial on all four bases, alleging that DelDOT is the appropriate custodian as it has retained and compiled the requested data; the request does not require the creation of a new record, as only a specified part of the database is requested to be extracted; the request is not for the contents of specific investigatory files but instead for “anonymized contents of a computer system;” and even if investigatory files are exempt, it is not “reasonable or lawful for aggregate data about the number and kinds of crashes that occur in Delaware to be exempt. . . .”2 Finally, you offer to remove the request for narrative information if that renders the request acceptable and note that DelDOT has made this information available to news outlets in the past, attaching several past news articles.

DelDOT’s counsel responded on April 12, 2019 (“Response”). First, DelDOT argues that the requested information is exempt for two reasons: 1) as investigatory files under 29 Del. C. § 10002(l)(3); and 2) pursuant to 21 Del. C. § 313 which states that DSHS shall prepare reports and tabulate and analyze reports showing the number, cause, and location of highway accidents that “shall not be open to public inspection.”3 Second, DelDOT argues that extracting a portion of the database and returning results based on specific parameters qualifies as a database query, which FOIA does not require in response to a records request. Third, DelDOT notes that despite any past provision of these records,4 it has not waived the applicable FOIA exemptions for these records. Fourth, DelDOT asserts that DSHS is the proper custodian, as DSHS receives the data from local law enforcement. The CARS database is populated with this data feed controlled by DELJIS. DelDOT cannot enter, remove, or modify data. DelDOT contends that merely having access to the data does not transform DelDOT into the custodian of this data.

Your Reply dated April 17, 2019 makes three additional points. First, you acknowledge that individual accident reports are exempt under FOIA, but you argue CARS data is a separate and unique record for purposes of FOIA, which is under DelDOT possession and custody. Second, you reiterate that your request does not require a database search, analogizing the request to a FOIA request requiring an email search. Finally, you note that DelDOT may instead give you a copy of the entire CARS database which would include the fields and years you’ve requested, redacted as DelDOT wishes.

2
Id.
3
Response.
4
Id. at FN 2 (asserting that previous releases of crash data were done pursuant to 2 Del.
Admin. C. § 2306, which was repealed in January 2019).
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DISCUSSION

FOIA exempts certain records from the definition of “public records.”5 Under 29 Del. C.
§ 10002(l)(6), records exempted from public disclosure by statute or common law are not “public records.” In this instance, you requested specific fields of the CARS database populated by data that DSHS collects from local law enforcement accident reports under 21 Del. C. § 313. This statute requires DSHS to “tabulate and analyze such reports and publish annually, or at more frequent intervals statistical information based thereon as to the number, cause and location of highway accidents,” noting that these reports “shall not be open to public inspection.”6 The data you have requested is therefore not subject to public disclosure.7 In addition, accident reports are considered “investigatory files” exempt from disclosure under 29 Del. C. § 10002(l)(3).8 These exemptions are not eliminated by simply transferring the report information into the CARS database.

In summary, we believe that 21 Del. C. §313 does not permit the data you requested be disclosed for public inspection, and accordingly, we determine that DelDOT appropriately withheld the records pursuant to 29 Del. C. § 10002(l)(6). Furthermore, this data is exempt as part of an investigatory file under 29 Del. C. § 10002(l)(3). As such, we need not address the remaining arguments in the Petition.

5
29 Del. C. § 10002.
6
21 Del. C. § 313 (emphasis added).
7
See also Jacobs v. City of Wilmington, 2002 WL 27817, at 3-5 (Del. Ch. Jan. 3, 2002) (concluding that City of Wilmington’s reports produced under 21 Del. C. § 313, even those that do not meet the statutory monetary threshold, are exempt from FOIA and noting that that the State Department of Public Safety is the “State’s informational repository for roadway safety” and “the requirements pertaining to a driver’s statutory responsibilities contain an important promise of confidentiality”). 8 Del. Op. Att’y Gen. 04-IB20, 2004 WL 2951950, at 2 (Nov. 16, 2004) (“The County is correct that the accident report you requested is exempt from disclosure under FOIA as an investigative file.”); Del. Op. Att’y Gen. 01-IB04, 2001 WL 1593104, at *2 (Feb. 27, 2001) (“These traffic reports are investigative files used for civil or criminal law enforcement purposes.”).

3

CONCLUSION

For the reasons set forth above, we conclude that DelDOT has not violated FOIA in denying your records request.

Very truly yours,

/s/ Allison E. Reardon
_____
Allison E. Reardon
State Solicitor9

cc: Ann C. Cordo, Deputy Attorney General Dorey L. Cole, Deputy Attorney General

9
The Chief Deputy Attorney General designated the State Solicitor to issue this Opinion.
4