Can a reporter obtain raw Delaware State Police traffic-stop data when the requested fields come from exempt reports?

Official title

19-IB44 8/12/2019 FOIA Opinion Letter to Mr. Craig O'Donnell re: FOIA Complaint Concerning The Delaware State Police

Plain-English summary

Dover Post reporter Craig O’Donnell requested ten years of raw Delaware State Police traffic-stop data, including officer identifiers and fields about stops, searches, arrests, vehicles, and operators. State Police denied the request. It argued that producing the requested database output would create a new record and that the underlying police and accident report information was exempt from public disclosure.

The AG found no FOIA violation on the exemption ground. State Police counsel represented that all requested data came from exempt investigatory records, including police and accident reports. The AG accepted that representation and said putting information from those reports into digital form did not remove the exemption. It also cited 21 Del. C. § 313(d), which then expressly excluded accident reports and crash data under that section from Delaware FOIA public records. The opinion’s conclusion concerns this report-derived traffic information; it does not decide every possible traffic dataset.

The AG did not resolve the separate dispute over whether exporting selected database fields would create a new record. Footnote 19 cautions State Police to give due consideration to the reasons it supplies in future denials because it raised the investigatory-file ground for police report information only in its petition response.

Currency note

This opinion was issued in 2019. Check current Delaware FOIA and accident-report law before relying on its statutory analysis.

Common questions

Why did digital storage not make the data public?

The AG wrote that transferring information from exempt police and accident reports into digital form does not eliminate the exemption. It relied on State Police counsel’s representation that the fields O’Donnell requested were derived from those reports.

Did the AG rule that every database export creates a new record?

No. State Police made that argument, and O’Donnell disputed it. The AG resolved this petition on the exemptions for the information, without deciding the export question. Footnote 10 cites an earlier opinion recognizing that an Excel export may not constitute creation of a new record.

Did State Police have 2017 and 2018 traffic statistical reports?

The agency had told O’Donnell that traffic statistical reports were released on its website. He later separately requested the 2017 and 2018 reports. Footnote 11 says that separate request was made after this petition was submitted and that State Police counsel said those two reports had not been created. The AG did not treat that later request as a proper issue in this petition.

Which exemptions did the opinion apply?

It applied the investigatory-file exemption in 29 Del. C. § 10002(l)(3) to report-derived data. It also cited 21 Del. C. § 313(d) and FOIA’s exemption for records made confidential by another statute, § 10002(l)(6), for accident reports and crash data under that provision. State Police had also raised a pending-litigation theory, but the opinion did not use it to reach the result.

What did the AG say about State Police’s original denial letter?

Footnote 19 observes that State Police asserted the investigatory exemption for police report information for the first time in its response to O’Donnell’s petition. The AG cautioned the agency to consider the reasons it gives in future FOIA denials, while still finding no violation on this record.

Background and statutory framework

The opinion treats the status of source records as decisive for this request. It cites Lawson v. Meconi and an earlier AG opinion for the proposition that report information does not become public merely by moving into a database. It quotes the then-current § 313(d) text excluding accident reports and crash data under that section from FOIA. The opinion does not establish that all raw traffic-stop information, regardless of its source, is exempt.

Citations

• 29 Del. C. § 10002(l)(3)
• 29 Del. C. § 10002(l)(6)
• 21 Del. C. § 313(d)
• Lawson v. Meconi, 897 A.2d 740, 745 (Del. 2006)
• Del. Op. Att’y Gen. 19-IB22 (April 26, 2019)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/08/12/19-ib44-8-12-2019-foia-opinion-letter-to-mr-craig-odonnell-re-foia-complaint-concerning-the-delaware-state-police/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/09/Attorney-General-Opinion-No.-19-IB44.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE
CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY
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-IB44

August 12, 2019

VIA EMAIL
Mr. Craig O’Donnell
Dover Post
[email protected]

RE: FOIA Petition Regarding the Delaware State Police

Dear Mr. O’Donnell:

We write in response to your correspondence alleging that the Delaware State Police (“DSP”) 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. As discussed below, we find that DSP did not violate FOIA as alleged.

BACKGROUND

You sent DSP a request on June 25, 2019 seeking “the raw data for traffic stops made for ten (10) years ending 1/1/2017” and asking that, if collected, DSP provide “officer race information and officer ID#” in addition to the data fields of “agencyID, assignment, stopdate, location, sector, vehstate, vehplate, vehmake, vehmodel, vehsearch, opoInstate, opdob, oprace, opsex, opeo, reason, reasonmore, searchmore, arrestactivity, cleardate, offnotes, quickstop and GUID.”1 On July 19, 2019, DSP responded that traffic statistical reports are released every year and available on its website but the records you requested are exempt from FOIA pursuant to previous opinions of this Office holding that public bodies are not required to create new records, “. . . compile . . . requested data from other public records that may exist, convert data into a new format, create programming, or conduct a database search using requested search criteria.”2 DSP

1
Petition.
2
Id.

further asserts that the information you seek is contained in “actual accident reports” which are statutorily exempt under 21 Del. C. § 313 and 29 Del. C. § 10002(l)(3).3

This Petition followed, in which you allege DSP’s denial violates FOIA because “a subset, or ‘report’ generated or exported from an extant database is NOT ‘a new record,’” your “request did not ask for specially compiled data, reprogramming, or searching using requested search criteria, but a machine-readable copy of the database contents,” and “[a] database is not, in fact, the underlying original reports or data,” which DSP claimed were exempt.4 You further allege that DSP violated FOIA by referring you to its website for statistical reports that you assert cannot be found using the menus on the website and “thus as a practical matter they are not available.”5 You contend that by “not forwarding a copy of these reports in response to the request and referring to a website where they are not available,” DSP violated FOIA.6

On July 26, 2019, DSP’s counsel replied to your Petition by letter (“Response”). DSP states that the requested information for certain raw data “would be derived from police reports and/or accident reports,” and as those reports are exempt under FOIA, DSP properly denied this request. DSP states police reports are not public records under 29 Del. C. § 10002(l)(3) and that the raw data requested, even if pertaining to a closed investigation, would still be subject to the investigatory file exemption. Also, DSP indicates that such data could “pertain to pending or potential litigation” and thus also be exempt under 29 Del. C. § 10002(l)(9).7 DSP states that because 21 Del. C. § 313(b) mandates that accident reports “shall not be open to public inspection,” and this Section of the Code “does not distinguish between the accident reports and the data contained within those accident reports,” the release of such information is prohibited and the information is thus exempt from FOIA under 29 Del. C. § 10002(l)(6), which exempts “[a]ny records specifically exempted from public disclosure by statute or common law.”8

In addition, DSP asserts that to fulfill your request, it would need to access a database, “select certain fields and criteria, and run a new report based on [the] specific requested parameters,” which constitutes the creation of a new record not required by FOIA.9 DSP denies

3
Id.
4
Id.
5
Id.
6
Id.
7
Response.
8
Id. DSP also provided clarification that this statute has been recently amended by the General Assembly.
9
Id.

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that your request seeks to have data exported to an Excel spreadsheet, which this Office has previously held may not constitute the creation of a new record under FOIA.10

Finally, DSP asserts that you made a FOIA request for the 2017 and 2018 traffic statistical reports on July 22, 2019, and DSP’s permissible timeframe to respond had not yet expired when you filed your petition. Nonetheless, DSP states that it has no responsive documents because DSP did not create traffic statistical reports for 2017 and 2018.11

DISCUSSION

FOIA requires a public body to make its public records available for inspection and copying,12 but certain records are excluded from the definition of “public record.”13 Under 29 Del. C. § 10002(l)(3), investigatory files compiled for the purposes of civil or criminal law enforcement are considered exempt. Here, DSP’s counsel represents that all data you requested is derived from records exempt as investigatory file records, including police reports and accident reports.14 Transferring the information from these reports into a digital format does not eliminate the exemption for such information.15

Additionally, DSP cites to 21 Del. C. § 313 as additional support that the traffic stop data in accident reports is also exempt from public disclosure.16 In its current version, this statute

10
Del. Op. Att’y Gen. 17-IB32, 2017 WL 3426272, at 3 (July 25, 2017).
11
In your Petition, you allege DSP violated FOIA by failing to send you the 2017 and 2018 traffic statistical reports in its response to your June 25, 2019 FOIA request. However, you made a FOIA request for these two reports to DSP’s FOIA Coordinator on July 22, 2019, a few hours after this Petition was submitted. Thus, although we do not believe that this allegation has been properly raised for purposes of this Petition, DSP’s counsel informed you in its Response that the 2017 and 2018 traffic statistical reports have not been created and therefore do not exist. 12 29 Del. C. § 10003(a).
13
29 Del. C. §§ 10002(l)(1) – (19).
14
Response; see also Del. Op. Att’y Gen. 17-IB59, 2017 WL 6348853, FN 12 (Nov. 20,
2017) (accepting the representations of public body’s counsel). 15
See Lawson v. Meconi, 897 A.2d 740, 745 (Del. 2006) (citing Attorney General Opinion
05-IB16 with approval and stating: “Investigatory files are not public information. A fortiori, any information gathered during the course of an investigation is not public information.”); Del. Op. Att’y Gen. 19-IB22 (April 26, 2019) (“These exemptions are not eliminated by simply transferring the report information into the CARS database.”). 16
29 Del. C. § 10002(l)(6) (excluding records “specifically exempted from public disclosure
by statute or common law”).
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explicitly states that “[a]ccident reports and crash data under this section are not public records under the Freedom of Information Act, Chapter 100 of Title 29.”17 Thus, this traffic stop information incorporated into police reports or accident reports for purposes of civil and criminal law enforcement is exempt.18

CONCLUSION

For the reasons set forth above, we find that DSP did not violate FOIA as alleged in the Petition.19

Very truly yours,

/s/ Alexander S. Mackler
_____
Alexander S. Mackler
Chief Deputy Attorney General

cc: Lisa M. Morris, Deputy Attorney General Dorey L. Cole, Deputy Attorney General

17
21 Del. C. § 313(d).
18
See, e.g., Del. Op. Att’y Gen. 19-IB22 (Apr. 26, 2019) (“In addition, accident reports are considered ‘investigatory files’ exempt from disclosure under 29 Del. C. § 10002(l)(3).”); Del. Op. Att’y Gen. 15-IB13, 2015 WL 9701644, at 2 (Dec. 29, 2015) (finding a post-mortem report to be covered by the investigatory file exemption); Del. Op. Att’y Gen. 04-IB20, 2004 WL 2951950, at 2 (Nov. 16, 2004) (determining accident reports are investigative files used for civil or criminal law enforcement purposes). 19 We note that DSP asserted the investigatory exemption for police report information for the first time in its Response to your Petition, and we respectfully caution DSP to give due consideration to reasons asserted in any future denials. Del. Op. Att’y Gen. 17-IB05, 2017 WL 1317847, at *FN37 (Mar. 10, 2017) (“While, in this instance, we have determined that DNREC’s denial of your request was indeed authorized by FOIA, we nevertheless caution DNREC to give careful consideration to the reason(s) provided, pursuant to 29 Del. C. § 10003(h)(2), for any FOIA denial.”).

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