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

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, stating 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. DSP's counsel represented that all the requested data is derived from records exempt as investigatory files, including police reports and accident reports, which are exempt under § 10002(l)(3). As the opinion put it, "[t]ransferring the information from these reports into a digital format does not eliminate the exemption for such information." The opinion also relied on 21 Del. C. § 313, quoting its then-current text 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." On that basis, the AG concluded the traffic-stop information incorporated into police reports or accident reports is exempt and DSP did not violate FOIA.

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?

The opinion states that "[t]ransferring the information from these reports into a digital format does not eliminate the exemption for such information." Because the underlying police reports and accident reports are exempt, data drawn from them stays exempt even after it is digitized.

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

The opinion did not rest on that point. DSP argued that running a custom report from a database would create a new record, but the determination turned on the simpler ground that the underlying records were investigatory and statutorily non-public, so the data was exempt regardless of the 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 the purposes of civil or criminal law enforcement." The opinion applied it here on DSP's representation that the requested data is derived from police reports and accident reports, and added that the exemption can apply even to data pertaining to a closed investigation.

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 does 21 Del. C. § 313 say about accident reports?

The opinion quotes the statute's then-current text 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," and DSP also pointed to § 313(b)'s direction that accident reports "shall not be open to public inspection." The statute 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. The opinion states that transferring information from exempt reports into a digital format does not eliminate the exemption, and that the exemption can reach data even where it pertains to a closed investigation.

DSP also argued that producing the data would require selecting fields and running a new report, which it characterized as creating a new record that FOIA does not require. The opinion did not need to resolve that argument, because it found the underlying records exempt on other grounds.

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)
• 21 Del. C. § 313 (accident reports and crash data not public records)

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

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