DE 19-IB26 2019-05-30

Can a journalist get a roster of Delaware pre-trial detainees with names, charges, ICE holds, and bond amounts under FOIA?

Short answer: No. The Delaware AG ruled that the Department of Correction properly denied a journalist's FOIA request for a roster of pre-trial detainees because 11 Del. C. § 4322(a) and § 8513(d) statutorily prohibit disclosure of DOC supervision records and criminal history record information. Delaware FOIA's § 10002(l)(6) exempts anything another statute forbids the agency from releasing. The opinion also flagged that an out-of-state requester likely lacks FOIA standing under § 10005.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

19-IB26 5/28/2019 FOIA Opinion Letter to Ms. Darya Marchenkova re: FOIA Complaint Concerning the Delaware Department of Correction

Plain-English summary

Darya Marchenkova, a journalist with Type Investigations, asked the Delaware Department of Correction in May 2019 for a snapshot list of every person held in pre-trial detention statewide: name, booking date, charges, bond amount, date of birth, gender, race, ICE hold status, U.S. Marshal hold status, and facility. DOC refused and the AG agreed.

The reason was not a discretionary FOIA exemption. Two separate Delaware statutes affirmatively forbid DOC from handing this information out. Title 11 § 4322(a) bars DOC from disclosing inmate supervision history or case records to anyone outside a short list of designated entities (Board of Parole, Board of Pardons, the AG and Deputy AGs, or as ordered by a court). Title 11 § 8513(d) bars anyone except the State Bureau of Identification from disclosing criminal history record information, which the statute defines to include arrests, charges, dispositions, sentencing, and correctional supervision data. Because both statutes prohibited release, FOIA's § 10002(l)(6) (records exempted from disclosure by statute) carried the day. The AG did not need to address DOC's other arguments about investigatory files or potential litigation.

The opinion closed with a footnote flagging that Marchenkova, who appeared to be based outside Delaware, may have lacked standing to file a FOIA petition at all. Section 10005's enforcement provisions are arguably available only to Delaware citizens. The AG did not formally rule on that question because it had already disposed of the case on the statutory disclosure ban.

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

What is "criminal history record information" under Delaware law?

The term is defined at 11 Del. C. § 8502. It covers identifiable arrest data, detentions, indictments and other formal charges, dispositions, sentencing, and correctional supervision and release records. It is centrally maintained by the State Bureau of Identification, and § 8513 limits who can disclose it.

Why couldn't DOC just redact the list and provide statistics?

The opinion did not require DOC to produce anything. The journalist's requested fields, names, dates of birth, charges, were the very fields the criminal history statute protects. Stripping out enough to comply would have left nothing recognizable as the requested record. FOIA also does not require an agency to create a new document.

Does this opinion mean reporters can never get jail population data in Delaware?

It means a reporter cannot use FOIA to compel DOC to produce a roster keyed to identifiable detainees. Aggregated, de-identified counts are a different question and are sometimes published voluntarily through DOC's Statistical Center or daily population reports. Court calendars and arrest records held by other agencies may also be reachable through different channels, subject to their own statutes.

Can a non-Delaware resident file a FOIA petition with the AG?

The opinion expressly questioned this in a footnote, citing § 10005, but did not decide it. Delaware's FOIA enforcement language ties the petition right to "any citizen." Out-of-state journalists pursuing Delaware records often partner with a Delaware-based co-requester or rely on records that are public-domain by court rule rather than FOIA.

Does the federal Freedom of Information Act apply to a state agency like DOC?

No. The federal FOIA only reaches federal executive-branch agencies. Delaware DOC is governed by Delaware's state FOIA at 29 Del. C. ch. 100.

Background and statutory framework

Delaware's FOIA at 29 Del. C. ch. 100 starts from a presumption that government records are public. Section 10002(l) lists the exemptions. Subsection (l)(6), the one that carried this case, removes from the definition of "public records" anything "specifically exempted from public disclosure by statute or common law." That exemption pulls in every other Delaware statute that restricts release of a particular kind of record.

Two such statutes applied here. Title 11 § 4322(a) limits DOC's disclosure of supervision history and case records gathered by DOC employees in their official capacity. Disclosure is permitted only to designated entities (Board of Parole, Board of Pardons, AG and Deputies) or pursuant to a qualifying court or Board of Pardons order. The petitioner did not represent any of those entities and had no qualifying order.

Title 11 § 8513(d), part of the criminal history record information chapter, prohibits anyone other than the State Bureau of Identification from disclosing criminal history record information. Section 8502 defines that term broadly enough to encompass identifiable arrest, detention, charge, sentencing, and correctional-supervision data, exactly the categories Marchenkova requested.

The standing footnote referred to 29 Del. C. § 10005(e), which establishes the petition mechanism the AG uses to issue these letter opinions. The text speaks of petitions by "any citizen," and prior AG opinions have treated that language as a Delaware-citizenship requirement.

Citations

29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
29 Del. C. § 10002(l)(3) (investigatory files exemption)
29 Del. C. § 10002(l)(6) (records exempted by statute)
29 Del. C. § 10002(l)(9) (pending or potential litigation)
29 Del. C. § 10005 (FOIA enforcement)
11 Del. C. § 4322(a) (DOC supervision and case records)
11 Del. C. §§ 8501, 8502, 8513, 8513(d) (criminal history record information)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
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. 19-IB26
May 28, 2019
VIA EMAIL
Ms. Darya Marchenkova
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Correction

Dear Ms. Marchenkova:

We write in response to your correspondence alleging that the Delaware Department of Correction ("DOC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. 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. Because DOC is statutorily prohibited from disclosing the requested records, we determine that DOC has not violated FOIA as alleged.

BACKGROUND

On May 1, 2019, you sent a records request to DOC for "digital records containing - but not limited to - the following information for all inmates who are incarcerated under pre-trial detention in Delaware Department of Correction facilities on the date you receive this request." The specific information requested included "inmate name, booking date, charge(s), bond amount, inmate date of birth, inmate gender, inmate race, Immigrations and Customs Enforcement hold, US Marshal hold, and facility name." You also requested the "data from Howard R. Young Correctional Institution and all other facilities in your jurisdiction that confine people awaiting trial."

DOC denied the request for three reasons: 1) 29 Del. C. § 10002(l)(3) excludes from the definition of public records any investigatory files compiled for civil or criminal law-enforcement purposes; 2) 11 Del. C. § 4322(a) does not permit the DOC to disclose supervision history and all other case records obtained in the discharge of their official duty other than to designated entities which include the Board of Parole, the Board of Pardons, the Attorney General and the Deputies Attorney General; and 3) 29 Del. C. § 10002(l)(9) excludes from public records "any records pertaining to pending or potential litigation which are not records of the court." DOC specifically noted that "[b]oth civil and criminal investigations are pending at the present time." After receipt of the denial, you filed this Petition.

Your Petition argues that your request is not for investigatory files and "has nothing to do with supervision history or records obtained in the discharge of official duty." Further, you allege that your request is not for "any records pertaining to pending or potential litigation which are not records of the court."

On May 14, 2019, DOC provided its response to the Petition through counsel ("Response"). DOC argues that your FOIA request was appropriately denied pursuant to 29 Del. C. § 10002(l)(6) because this information is prohibited from disclosure by 11 Del. C. § 8513(d) and 11 Del. C. § 4322(a). Additionally, DOC contends that because you do not appear to be a citizen of this State, you are not entitled to compel a government agency to produce documents under Delaware's FOIA statute.

In your Reply, you first assert that your request does not pertain to the supervision history of DOC employees. Instead, you request a "spreadsheet of all inmates held in DOC facilities and awaiting trial on the day that the department processes the request." Additionally, you allege that your request only relates to the charges for confined inmates awaiting trial and you offer "to modify [the] request to receive the records without a column that includes the inmates' charges." Finally, you note that as a journalist, you seek the information for the public interest and to contribute to the public's understanding of the criminal justice system.

DISCUSSION

You requested digital records containing certain information about inmates in pretrial detention. Pursuant to 29 Del. C. § 10002(l)(6), records specifically exempted from public disclosure by statute or common law shall not be considered "public records." DOC cites to 11 Del. C. § 4322(a) which prohibits the DOC's disclosure of supervision history and case records obtained by DOC members or employees in their official capacity, unless such disclosure is made to certain designated entities or as directed by an order of a court or the Board of Pardons. The record does not reflect that you have obtained a qualifying order requiring DOC to produce records or that you otherwise represent one of the statutorily-referenced entities.

Also, DOC cites to 11 Del. C. § 8513(d) as a second statute prohibiting disclosure of the requested information. This statute governs the dissemination of criminal history record information collected by the State Bureau of Information. Any person or agency, other than the State Bureau of Identification, is prohibited from disclosing criminal history record information, which includes "information collected by state or federal criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations or other formal criminal charges and any disposition arising therefrom, sentencing, correctional supervision and release." Your request includes information that qualifies as criminal history record information.

Accordingly, DOC's disclosure of the requested records is prohibited by 11 Del. C. § 4322 and 11 Del. C. § 8513 based on the record before us. Therefore, we find that DOC did not violate FOIA in denying your request, and we need not address DOC's remaining assertion.

While we have decided to issue a determination regarding the merits of your claim, we feel compelled to note that as a non-citizen of Delaware, you may lack standing to avail yourself of the enforcement provisions contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).

CONCLUSION

For the reasons set forth above, we determine that DOC has not violated FOIA as alleged.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc:
Gregory E. Smith, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General