DE 20-IB16 2020-04-08

If a Delaware police agency doesn't keep aggregate ballistics statistics, can a journalist FOIA that count?

Short answer: No. The AG concluded the Delaware State Police did not violate FOIA when it refused to produce five years of bullet and casing counts, because FOIA does not force an agency to compile a new record from data scattered across investigatory files.

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 AG opinions are persuasive authority but not binding precedent.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

20-IB16 4/8/2020 FOIA Opinion Letter to Mr. Esteban Parra re: FOIA Complaint Concerning the Delaware State Police

Plain-English summary

A News Journal reporter asked the Delaware State Police for the number of bullets and bullet casings each Delaware police department had submitted to DSP for review and testing over a five-year period, plus caliber and gun information. DSP refused, saying any such records would fall inside the investigatory files exemption and that FOIA does not require an agency to create a record that does not already exist. The reporter argued the request was for raw counts, not for the underlying investigatory file, and pointed out that other police agencies had publicly released similar numbers.

The Chief Deputy Attorney General sided with DSP. The AG accepted DSP's representation that no such compiled record actually existed in any format, and reaffirmed the long-standing rule that FOIA never forces a public body to manually pull data out of separate investigatory files to produce a new aggregate record on demand. Because the inquiry stops once the agency credibly says the record does not exist, the AG never had to decide whether the investigatory exemption alone would have blocked release.

Currency note

This opinion was issued in 2020. 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

Was the AG saying these ballistics statistics are secret?

No. The AG did not actually decide whether the underlying numbers were exempt as investigatory material. The decision turned on a much narrower point: DSP's counsel represented that no compiled record of those numbers existed, and FOIA does not require the agency to build one. If DSP had already maintained a routine spreadsheet of casings submitted by department, the analysis could have come out differently.

Why didn't FOIA force DSP to count the casings and produce a number?

Delaware's FOIA, like most state public records laws at the time, distinguished between producing existing records and creating new ones. The opinion cited prior AG precedent reading FOIA to "not require a public body to compile the requested data from other public records that may exist." A request that requires staff to read each investigatory file, extract a count, and roll the counts up by department was treated as record creation, not record production.

What about the fact that other police agencies had released similar numbers?

The AG treated that as legally irrelevant. One agency voluntarily releasing data does not waive any other agency's exemption claim, and one agency producing a compiled count does not prove that another agency keeps the same compiled count.

Could the reporter have rephrased the request to get something?

In theory, yes. A request for existing tracking documents (logs, intake forms, monthly reports the lab actually maintained) might have produced records. A request that asked DSP to generate a five-year roll-up would not. Wording matters under FOIA: the line between "give me what you have" and "do an analysis for me" is doing real legal work.

Background and statutory framework

The reporter submitted a January 24, 2020 FOIA request to DSP for the number of bullets and casings submitted by each Delaware police department over five years, plus caliber and gun information. DSP denied the request on February 12, 2020, citing 29 Del. C. § 10002(l)(3) (investigatory files exemption) and the rule that FOIA does not require an agency to create new records.

Under 29 Del. C. § 10003(a), public bodies must provide reasonable access to public records. Under 29 Del. C. § 10005(c), the burden falls on the public body to justify a denial. The investigatory files exemption removes from the definition of "public record" any "investigatory files compiled for civil or criminal law-enforcement purposes." The AG's office had repeatedly held that FOIA "does not require a public body to compile the requested data from other public records that may exist."

The reporter cited a parallel disclosure of casing counts attributed to the Wilmington Police Department, but the AG treated that as no waiver of DSP's exemption and no proof that DSP itself maintained an aggregate count.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10002(l)(3) (investigatory files exemption)
29 Del. C. § 10003(a) (public access to records)
29 Del. C. § 10005 (petition for determination)
Del. Op. Atty. Gen. 17-IB02, 2017 WL 955566 (Feb. 8, 2017)
Del. Op. Att'y Gen. 04-IB14, 2004 WL 1547683 (Jun. 28, 2004)

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. 20-IB16
April 8, 2020
VIA EMAIL
Esteban Parra
The News Journal
[email protected]
RE:

FOIA Petition Regarding the Delaware State Police

Dear Mr. Parra:
We write in response to your correspondence on behalf of The News Journal 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 DSP did not violate FOIA as alleged.

BACKGROUND

You submitted a FOIA request to DSP on January 24, 2020, seeking "the number of bullets and/or bullet casing submitted by each police department for review/testing by the firearms/ballistics examiners for the last five years (2019-2014)."[1] The request also sought "the caliber of bullet and any additional information on the gun used."[2] DSP responded on February 12, 2020, stating that any reports would be exempt from FOIA as investigatory files under 29 Del. C. § 10002(l)(3) and that FOIA does not require a public body to create a document that does not already exist. This Petition followed.

In your Petition, you allege that you have not requested the investigatory file; instead, you have asked "for numbers of specific items collected by civil servants and that were then reviewed by agents of the Delaware Division of State Police," which you view as similar to police agencies releasing the number of people injured by gunfire in shootings.[3] You assert that there must be an existing record because you have received information pertaining to the number of casings collected by the Wilmington Police Department last year and your understanding is that those casings were reviewed by DSP's ballistics and firearms agents.

On March 19, 2020, DSP's counsel replied to your Petition ("Response"), asserting that the information you seek is exempt from the definition of a public record under the investigatory files exemption and DSP possesses no existing responsive records. DSP states that the bullets and casing information are contained in criminal investigatory files, and these files, including the specific information you seek, are exempt from FOIA. DSP contends that police agencies' release of the number of people injured in a shooting does not waive the applicability of the investigatory exemption here, and this comparison is not relevant, as the injury information allegedly released does not match the information in this request. Similarly, DSP argues that whether information exists regarding the Wilmington Police Department's casings in the last year is not relevant to this analysis, as "this response does not address the issue of whether DSP has an existing document responsive to the FOIA request."[4] Finally, DSP's counsel emphasizes that there are no existing records to provide, stating that "DSP does not have existing records containing the information sought in [your] FOIA request," nor does DSP "maintain" a separate existing record responsive to your request.[5]

DISCUSSION

FOIA mandates that a public body provide citizens with reasonable access to its public records.[6] The record sought here is a compilation of information derived from criminal investigations, the number of bullets or bullet casings submitted by each Delaware police department to DSP for review or testing within the last five years, in addition to certain other descriptions. FOIA does not mandate that a public body manually compile information from separate files to create a new record in response to a request.[7] Thus, our inquiry is limited to whether DSP maintains an existing record, in any format, with this compiled information. DSP's counsel represents that no such record exists. Based on this representation, we find that DSP did not violate FOIA in denying access to this record.[8]

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:

Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Id.
[3] Id.
[4] Response.
[5] Id.
[6] 29 Del. C. § 10003(a).
[7] See Del. Op. Atty. Gen. 17-IB02, 2017 WL 955566, at 6 (Feb. 8, 2017) ("This Office has further stated that 'FOIA does not require a public body to compile the requested data from other public records that may exist.'") (quoting Del. Op. Att'y Gen. 04-IB14, 2004 WL 1547683, at 2 (Jun. 28, 2004)).
[8] See, e.g., Del. Op. Atty. Gen. 19-IB27, 2019 WL 4538313, at 2 (May 29, 2019); Del. Op. Atty. Gen. 15-IB14, 2015 WL 9701645, at 3 (Dec. 29, 2015); Del. Op. Atty. Gen. 07-IB11, 2007 WL 4732794, at 2 (May 10, 2007); Del. Op. Atty. Gen. 05-IB19, 2005 WL 2334347, at 5 (Aug. 1, 2005).