DE 19-IB44 2019-08-12

Can a Delaware journalist FOIA the raw traffic-stop database used by State Police?

Short answer: No. The Delaware AG ruled that the Delaware State Police properly withheld 10 years of raw traffic-stop data. The data is derived from police reports and accident reports, which are exempt as investigatory files under § 10002(l)(3) and statutorily non-public under 21 Del. C. § 313(d). Transferring the report contents into a digital database does not strip the exemption.

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 AG opinions are persuasive authority but not binding precedent.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-IB44 8/12/2019 FOIA Opinion Letter to Mr. Craig O'Donnell re: FOIA Complaint Concerning The Delaware State Police

Plain-English summary

Craig O'Donnell of the Dover Post asked the Delaware State Police for 10 years of raw traffic-stop data, with fields for officer race and ID, agency ID, stop date, location, vehicle and operator information, search and arrest activity, clearance, offense notes, and other database columns. DSP refused, citing prior AG opinions holding that public bodies are not required to "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." DSP also cited 21 Del. C. § 313 and 29 Del. C. § 10002(l)(3): the underlying records are accident reports and police reports, both statutorily non-public.

The AG affirmed. Investigatory files compiled for civil or criminal law enforcement purposes are exempt under § 10002(l)(3), and Lawson v. Meconi (Del. 2006) holds that "any information gathered during the course of an investigation is not public information." The exemption does not vanish when the data is moved into a database; AG Opinion 19-IB22 specifically held that "[t]hese exemptions are not eliminated by simply transferring the report information into the CARS database." Section 313(d) goes further: "Accident reports and crash data under this section are not public records under the Freedom of Information Act, Chapter 100 of Title 29." Combined with § 10002(l)(6) (which sweeps in statutorily non-public records), the bar is comprehensive.

The AG added a small caution at the end of the opinion: DSP raised its investigatory-files theory for the first time in its petition response, not in the original denial. § 10003(h)(2) requires reasons for denial up front, and the AG urged DSP to give "due consideration to reasons asserted in any future denials."

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 doesn't moving data from a paper file to a database make it disclosable?

Lawson v. Meconi (Del. 2006) held that information gathered during an investigation does not lose its exemption simply because the agency reformats or digitizes it. AG Opinion 19-IB22 applied that to a database (CARS) populated from accident reports. Same data, same exemption.

Is asking for a database export a "request to create a new record"?

Sometimes. The AG noted that exporting data to a spreadsheet from an existing database may not be "creation" under 17-IB32. The dispositive issue here was different: the underlying records were investigatory and statutorily non-public, which would have been the same answer regardless of the data-export argument.

What is § 10002(l)(3) and how broad is the investigatory-files exemption?

It excludes from "public records" any "investigatory files compiled for civil or criminal law-enforcement purposes." Delaware courts have read it broadly. Lawson v. Meconi extended the exemption to information gathered during investigations even when the file is closed. Police reports and accident reports both fall within that category in this Office's opinions.

Can journalists ever get traffic-stop demographic data from Delaware police?

DSP publishes annual aggregate traffic statistical reports voluntarily. Those reports are public. What FOIA cannot reach is the row-level raw data behind them when those rows trace to police reports and accident reports. Aggregate output can satisfy public-interest reporting in many cases.

What is 21 Del. C. § 313(d)?

A 2019 amendment to Delaware's accident-report statute that explicitly removed accident reports and crash data from FOIA's scope. The original opinion cited the section's then-current text. The provision has been amended over the years; check the present text before relying on it.

Background and statutory framework

Delaware's accident-report law at 21 Del. C. § 313 historically restricted disclosure of accident reports themselves; the 2019 amendment cited in this opinion went further by also covering "crash data," which is the data layer abstracted from the report files. Combined with § 10002(l)(6), which incorporates other statutory non-public designations into FOIA, the result is a comprehensive bar on releasing report-derived data.

The investigatory-files exemption at 29 Del. C. § 10002(l)(3) has independent reach. Under Lawson v. Meconi, the exemption survives reformatting and digitization. AG Opinion 19-IB22 (April 26, 2019) applied this to the CARS (Computer Aided Records Software, the system populated from accident reports) database.

The "no duty to create" rule applies to FOIA requests that ask the agency to write programs, run custom queries, or generate analytical reports that do not currently exist as standing records. AG Opinion 17-IB32 distinguished a database export to spreadsheet, treating that as something less than "creation."

The closing caution about denial reasons traces to § 10003(h)(2)'s requirement that denial responses indicate the reasons for denial. Public bodies should not save legal theories for the petition response when they were available at denial time.

Citations

29 Del. C. § 10002(l)(3) (investigatory files exemption)
29 Del. C. § 10002(l)(6) (records exempt by statute)
29 Del. C. § 10002(l)(9) (pending or potential litigation)
29 Del. C. § 10003(a) (inspection and copying)
29 Del. C. § 10003(h)(2) (reasons for denial)
21 Del. C. § 313, § 313(d) (accident reports and crash data)
Lawson v. Meconi, 897 A.2d 740 (Del. 2006)
Del. Op. Att'y Gen. 19-IB22 (April 26, 2019)
Del. Op. Att'y Gen. 17-IB32, 2017 WL 3426272 (July 25, 2017)

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB44

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." 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." DSP 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).

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. 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." 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.

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). 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."

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. DSP denies 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.

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.

DISCUSSION

FOIA requires a public body to make its public records available for inspection and copying, but certain records are excluded from the definition of "public record." 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. Transferring the information from these reports into a digital format does not eliminate the exemption for such information.

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. In its current version, this statute 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." Thus, this traffic stop information incorporated into police reports or accident reports for purposes of civil and criminal law enforcement is exempt.

CONCLUSION

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

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