DE 19-IB62 2019-11-06

Can a Delaware police department withhold automated gunshot-detection data by saying every alert now starts a criminal investigation?

Short answer: Yes, after April 2017. The Delaware AG ruled Wilmington Police properly invoked the investigatory-files exemption for ShotSpotter activation records dated after April 2017, when the City started auto-opening an investigation on every gunfire detection. Pre-April 2017 records and previously-released data were not covered and must be reviewed.

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 AG opinions are persuasive authority but not binding precedent.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-IB62 11/6/2019 FOIA Opinion Letter to Mr. Xerxes Wilson re: FOIA Complaint Concerning The City of Wilmington

Plain-English summary

Wilmington uses ShotSpotter, an automated gunfire-detection system that flags gunshot events with time and location. News Journal reporter Xerxes Wilson asked for ShotSpotter activations going back to February 1, 2017. The City denied the request entirely, citing two exemptions: investigatory files and intelligence files compiled for law enforcement.

Wilson petitioned, arguing that gunshot data is not investigatory because the activations are automatic, predate any actual police investigation, and the same data is often publicized later (and was sometimes obtainable from a police scanner or from the City itself). He noted the City had given him similar data in February 2017.

The City explained a procedural change: starting in April 2017, every ShotSpotter activation auto-opens a new criminal investigation and generates an investigative report. The City submitted a sworn affidavit from the Inspector of Operations to that effect. Before April 2017, the data was not integrated into investigative work.

The AG split the timeline. Records from after April 2017 are exempt as investigatory files under § 10002(l)(3). The Office's prior holdings (notably 17-IB05) say the investigatory-files exemption attaches as soon as an agency is "first made aware of a potential issue." When ShotSpotter triggers an automatic investigation, the agency is on notice and an investigatory file begins immediately. Pre-April 2017 records, however, were not covered, since the investigative-process change had not yet kicked in.

The AG also noted a separate point: Wilson said the City sometimes publicizes ShotSpotter datasets at the outset of an investigation. Records the City has already publicly released cannot be confidential investigatory file materials. The AG recommended Wilmington identify and provide those public releases.

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

Does an automatic alert really start an "investigation"?

The opinion accepts that it can, when the agency formally treats the alert as the trigger for an investigation, generates a written investigative report, and integrates the alert into intelligence work. The factual record (Inspector of Operations affidavit, sworn under oath) was central to the conclusion. Without that backing, the answer might have been different.

What about activations before April 2017, when the City did not auto-investigate?

The City did not justify withholding those, and the AG specifically directed the City to provide a supplemental response. The investigatory-files exemption depends on the existence of an investigation at the relevant time.

If a police department once released the same data, can it later refuse?

Once data is genuinely public, it cannot be reclassified as a confidential investigatory file. The opinion treats prior public release as a clear strike against an exemption claim and tells the City to identify and produce records that have already been released.

What is the difference between investigatory and intelligence files?

Investigatory files (§ 10002(l)(3)) cover records compiled for civil or criminal law enforcement. Intelligence files (§ 10002(l)(5)) cover information gathered to assess threats. The City raised both, but because the AG decided the case under the investigatory-files exemption, it did not address the intelligence-files theory.

Does this give any police agency cover to withhold automated-sensor data?

Not by default. The City's victory came from the affidavit and procedural showing: every alert opens an investigation, every alert generates a file, every alert feeds intelligence-led policing. An agency that just declares its sensor records investigatory without that operational scaffolding will likely fail.

Background and statutory framework

ShotSpotter is widely deployed in U.S. cities and is one of several automated detection systems whose outputs sit on the line between routine sensor data and law-enforcement intelligence. The 19-IB62 holding reflects the AG's general rule that the investigatory-files exemption can attach early in a process if the agency's structure treats the trigger event as the start of an investigation.

29 Del. C. § 10002(l)(3) covers investigatory files compiled for the purposes of criminal or civil law enforcement. AG Opinion 17-IB05 spelled out the early-attachment rule: "for purposes of FOIA, the investigatory exemption attaches as soon as an agency is first made aware of a potential issue."

The opinion does not address whether public-comment-period dissemination of a single dataset waives the exemption for the entire dataset, only that records the City has itself publicized cannot be treated as confidential investigatory materials.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002, § 10002(l)(3), § 10002(l)(5)
29 Del. C. § 10003, § 10005
Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847 (Mar. 10, 2017)

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

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-IB62
November 6, 2019
VIA EMAIL
Mr. Xerxes Wilson
The News Journal
[email protected]
RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Wilson:

We write in response to your correspondence alleging that the City of Wilmington ("City") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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 more fully herein, we determine that the City did not violate FOIA by asserting the investigatory file exemption for certain ShotSpotter records after April 2017, but it is recommended that the City review its records and provide a supplemental response in accordance with this Opinion.

BACKGROUND

The City's police department utilizes an automated gunfire detection system known as ShotSpotter. On August 16, 2019, you requested "access to review any records which list ShotSpotter activations, including time and location, responded to by Wilmington Police dating back to February 1, 2017" from the Wilmington Police Department. The City responded on August 28, 2019 that such records "constitute intelligence files compiled for law-enforcement purposes, and contain information that [is] considered to be investigatory files related to ongoing criminal investigations, both of which are exempt from disclosure under Delaware State Code, Title 29 § 10002(l)(3) and (l)(5)." This Petition followed.

The Petition challenges the City's denial of your request, asserting that the City interprets the exemptions too broadly. You argue that the disclosure of a list of where gunfire occurred would not "cause risk to public safety," and because the data is automatically generated, you assert it would not discourage reporting. You contend that the question of where and when gunfire occurs is not investigatory because police may not investigate each occurrence and the occurrences precede any investigation. You state that details of where and when gunfire occurred is often publicized by police and the knowledge that it occurred can be gained from a police scanner or someone's observation of the event. Finally, you note the City previously provided this information to you in February 2017.

The City responds that it applied the exemptions appropriately and that a previous production of the data has no bearing on whether it must do so now. The City explains that it began incorporating the data generated by ShotSpotter into its "investigative, intelligence-led policing model" in April 2017 and previously "the data was not integrated into [the City's] methods of investigating crime and developing intelligence to prevent crime." The City provided a sworn affidavit of the police department's Inspector of Operations, asserting that every activation of ShotSpotter now initiates a new investigation and requires an investigative report. The City further states that such data is part of its intelligence files and releasing it would interfere with or prohibit some criminal investigations and cause potential danger to victims, witnesses, or community members.

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, the City's counsel explains that beginning in April 2017, every instance of gunfire recorded in ShotSpotter initiates a new criminal investigation. That representation is bolstered by the Inspector's affidavit, sworn under penalty of perjury. This investigatory file exemption attaches as soon as the City is made aware of a potential issue prompting its investigation. Thus, we conclude that the City appropriately asserted that the requested records after April 2017 are exempt from the definition of "public record" pursuant to Section 10002(l)(3). However, the City is recommended to provide a supplemental response for requested records prior to April 2017.

We make this determination with one caveat. You assert that the City possesses records responsive to your request that are already public. Specifically, the Petition states that the City "often publicize[s] such individual sets of such data at the outset of an investigation." These publications with the data sets appear responsive to your request, and any such publications are not being treated as confidential investigatory file materials; accordingly, we recommend these publications be provided to you. The City is encouraged to assist you in identifying and locating these specific records.

CONCLUSION

For the reasons set forth above, we determine that the City did not violate FOIA by asserting the investigatory file exemption for the requested records after April 2017, but it is recommended that the City review its records and provide a supplemental response.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc:

Marlaine A. White, Senior Assistant City Solicitor, City of Wilmington (via email)