If you ask one Delaware agency for crime statistics they don't have, can you complain when they tell you no, even if a different state agency has the data?
Official title
22-IB02 2/1/2022 FOIA Opinion Letter to Amanda Fries re: Complaint Concerning the Delaware Criminal Justice Information System
Plain-English summary
The Delaware Criminal Justice Information System (DELJIS) operates the computer hardware, software, and communication network for the state's Criminal Justice Information System (CJIS) (11 Del. C. § 8502). It supports law enforcement agencies but does not directly compile public-facing statistical reports.
On December 22, 2021, Amanda Fries of Delaware Online / The News Journal submitted a FOIA request to DELJIS for "copies of public records of the number of juveniles criminally charged in 2020 as well as 2021 . . ., broken down by age and charge, if possible." On January 3, 2022, DELJIS denied the request asserting (a) the underlying records are exempt as criminal files and investigatory files under 11 Del. C. ch. 85 and 86 and 1 Del. Admin. C. § 1300, carried into FOIA via 29 Del. C. § 10002(o)(6), and (b) FOIA does not require an agency to compile data, convert format, write programming, or run database queries.
Fries replied that the data is reported annually to the FBI as part of the National Incident Based Reporting System (NIBRS), so it should be readily available, and that crime statistics are not "investigatory files" because the statutory definition of "criminal history record information" is about identifiable individuals, not aggregate counts.
After Fries filed her petition, DELJIS's Executive Director called her the next day and explained the document she wanted (the NIBRS report) is prepared by the Delaware State Police's State Bureau of Identification (SBI), not DELJIS. Fries then submitted the request to SBI. On January 11, 2022, SBI replied: it is the public agency that maintains and reports this data; the 2020 and 2021 final data was not yet available (typical finalization in March, with publication in April), but SBI provided draft data as a courtesy and invited Fries to resubmit for the final version when ready.
The AG ruled the matter moot. Fries had received the records (in draft) from the right agency. Mootness law in Delaware FOIA petitions is well-established (Flowers; The Library, Inc.).
The opinion does not formally endorse DELJIS's substantive denial reasoning. The AG simply concluded that the dispute was over.
What this means for you
For Delaware journalists pursuing crime statistics. Two takeaways. First, the right initial agency is SBI (Delaware State Police, State Bureau of Identification), not DELJIS. SBI compiles the National Incident Based Reporting System (NIBRS) data that flows to the FBI's Uniform Crime Reporting program. Second, plan around the NIBRS calendar: data for a given year is typically finalized in March of the following year and published shortly thereafter. If you want the data sooner, ask for a draft as a courtesy. SBI provided one here.
For Delaware criminal justice researchers and advocates. Aggregate, de-identified crime statistics are conceptually different from individual criminal-history record information (CHRI). CHRI is governed by 1 Del. Admin. C. § 1300, the federal CJIS Security Policy, and 11 Del. C. ch. 85 and 86. Aggregate statistics do not contain CHRI in the protected sense. The DELJIS denial conflated the two; SBI's response (provide aggregate data) implicitly recognized the distinction. If you want CHRI on a specific person, you need that person's signed release or a court order. If you want aggregate counts by age and charge, ask SBI.
For Delaware state agencies receiving misrouted FOIA requests. This opinion is the model. DELJIS did the right thing: when it realized the request belonged at SBI, it called the requester, named the right agency, and helped facilitate the transfer. That is the kind of inter-agency cooperation that resolves disputes without an AG petition. The phone call probably mooted the case faster than any written response could have.
For data infrastructure agencies that are not statistics-publishing agencies. DELJIS's role is to host and route data, not to publish reports. When public bodies receive FOIA requests for compiled data, the threshold question is whether the body actually maintains the requested data product. If not, redirect rather than deny on substantive grounds. This avoids the kind of multi-step dispute that cost both Fries and DELJIS time here.
Common questions
Why didn't DELJIS just have the data?
DELJIS is the data plumbing for Delaware's criminal justice ecosystem. It hosts CJIS, the system that includes criminal-history record information, court records, prosecution data, and corrections data. DELJIS doesn't itself produce statistical reports. The State Bureau of Identification, within the Delaware State Police, is the agency tasked with compiling NIBRS data and reporting it to the FBI.
What's NIBRS?
The FBI's National Incident Based Reporting System replaced the older Summary Reporting System (UCR) for most U.S. law enforcement reporting. NIBRS captures detailed incident-level data: offense type, victim and offender demographics (without identifying information), location, weapon involved, etc. The FBI publishes annual reports based on the data submitted by state programs.
Why was DELJIS's substantive denial reasoning iffy?
Two reasons. First, FOIA does not require an agency to create a record, but if the agency already has the record, the duty-to-create rule does not apply. The question is whether DELJIS or SBI has the report, not whether either of them must build a new one. Second, the criminal-files / investigatory-files exemption is about individual case records, not aggregate statistics; aggregating away identifying information generally moves a record out of the exemption (federal FOIA exemption 7(C) cases like Reporters Committee make this point too). The AG didn't endorse DELJIS's reasoning; it just mooted out the case.
What's the practical workflow for getting NIBRS-style data from SBI?
Submit a FOIA request to SBI. Specify the year(s), the level of detail (offense category, age range, jurisdiction), and indicate whether you'll accept draft data. SBI typically publishes the prior year in April. If the requester is a non-resident, the citizenship rule applies (see AG 23-IB31).
What if I want county-level or jurisdiction-level data?
NIBRS data are aggregated at the agency-of-incident level. SBI can typically slice the data by reporting agency. Ask explicitly. The Delaware Statistical Analysis Center (in the Office of the Governor or, since 2022, in the Department of Safety and Homeland Security depending on year) also publishes derivative analytic reports.
Could DELJIS have refused on the citizenship ground?
Fries works for The News Journal, which has Delaware operations and Delaware staff. Her petition was treated on the merits without standing concerns. For non-Delaware journalists, DELJIS could have denied on the citizenship ground (per AG 16-IB20).
Background and statutory framework
11 Del. C. § 8502 establishes DELJIS and defines its mission as supporting the criminal-justice community with computer infrastructure and a data network.
29 Del. C. § 10005(e) limits the AG's FOIA petition jurisdiction to FOIA-violation determinations.
The mootness chain (Flowers v. Office of the Governor, The Library, Inc. v. AFG Enterprise, AG 17-IB35) provides the AG's standard authority for declining to issue a determination after the underlying issue is resolved.
The duty-to-create rule and the data-distinction-from-individual-records principle are foundational FOIA doctrine in Delaware and consistent with federal FOIA case law. The AG did not need to develop them here because the request was routed to the right agency.
Citations
- 11 Del. C. § 8502: DELJIS authority
- 29 Del. C. § 10005, § 10005(e): petition jurisdiction
- 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
- Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017): mootness
- The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159 (Del. Ch. July 27, 1998): mootness
- Del. Op. Att'y Gen. 17-IB35 (July 31, 2017): mootness
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/02/01/22-ib02-2-1-2022-foia-opinion-letter-to-amanda-fries-re-complaint-concerning-the-delaware-criminal-justice-information-system/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/02/Attorney-General-Opinion-No.-22-IB02.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
ATTORNEY GENERAL
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
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. 22-IB02
February 1, 2022
VIA EMAIL
Amanda Fries
Delaware Online/The News Journal
[email protected]
RE: FOIA Petition Regarding the Delaware Criminal Justice Information System
Dear Ms. Fries:
We write in response to your correspondence alleging that the Delaware Criminal Justice Information System ("DELJIS") 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 in connection with your records request. As discussed more fully herein, we determine that this matter is now moot.
BACKGROUND
DELJIS operates, manages, and maintains the computer hardware, software, and communication network for the Criminal Justice Information System ("CJIS"), which supports the criminal justice community. On December 22, 2021, you submitted a request to DELJIS for "copies of public records of the number of juveniles criminally charged in 2020 as well as 2021 (through [the] date of when this request is filled)." You requested that the data be broken down by age and charge, if possible. On January 3, 2022, DELJIS denied this request, stating it did not have any public records responsive to your request. DELJIS asserted that the criminal files and records and criminal investigatory files are exempt from FOIA, and as 11 Del. C. ch. 85 and 86 and 1 Del. Admin. C. § 1300 preclude disclosure, those records are also exempt pursuant to 29 Del. C. § 10002(o)(6), which exempts records that are prohibited from disclosure by statute. In addition, DELJIS stated that FOIA does not require it to compile the 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.
You responded that same day, clarifying that the "crime statistics [you are] requesting are submitted by Delaware law enforcement agencies to the Federal Bureau of Investigation (FBI) annually" and thus, you contend that the data should be readily available, as there is no need to compile data, convert it into a new format or conduct a database search. You provided DELJIS with a link to the online 2019 FBI report, noting the breakdown for those individuals charged under and over 18 years of age. However, you state that the FBI database does not have 2020 and 2021 statistics. You then submitted your Petition.
DELJIS states that its Executive Director called you the day after you filed this Petition to advise that the document you are seeking, which is known as the National Incident Based Reporting System report, is prepared by the Delaware State Police, State Bureau of Identification ("SBI"). DELJIS provided a copy of your subsequent request to SBI and SBI's January 11, 2022 response, in which SBI affirmed it prepares the document you requested and provided the data in draft form to you as a courtesy, notwithstanding SBI's assertion that FOIA does not obligate public bodies to provide drafts of public records. SBI noted that if you wish to submit a request for the final data, it would typically be finalized by March and available in April 2022.
In your Petition, you assert that public records responsive to your request exist is supplied by Delaware law enforcement to the Federal Bureau of Investigation annually, as evidenced by FBI's website containing the 2019 data. As the "statewide keeper of criminal justice data and statistics," you contend DELJIS is the correct agency from which to seek this data. You argue that DELJIS does not have to create or convert data, as you are "simply asking for the same data law enforcement agencies submit to the FBI annually for the years 2020 and 2021 since the federal agency has a two-year lag on the latest statistics." In addition, you argue that your request does not seek records of any investigatory files, but criminal statistics. You contend that DELJIS's reliance on the disclosure provisions for "criminal history record information" to deny access to this data is inappropriate as the statutory definition clearly pertains only to "individual" criminal history records or any other identifiable descriptions and notations, and arrest numbers are required to be made public.
DELJIS, through its legal counsel, responded to your Petition on January 12, 2022 ("Response"). DELJIS argues that it has no control over this report that SBI prepared or over SBI itself, and DELJIS is not obliged by FOIA to contact another entity to obtain records it does not control. As you have now received this record from SBI, DELJIS contends this Petition is moot. In addition, DELJIS's counsel asserts that the report you seek does not exist at DELJIS and to fulfill your request, DELJIS would have to create an ad hoc report, which would be time-consuming and burdensome.
DISCUSSION
This request, as clarified by your January 3, 2022 email to DELJIS, is for the 2020 and 2021 juvenile crime statistics which are reported to the FBI annually. After denying your request, DELJIS directed you to SBI, who affirmed it is the public agency that maintains and reports this data to the FBI. You submitted this same request to SBI and despite advising that the final 2020 and 2021 data is not currently available, SBI provided you with the draft version as a courtesy and invited you to resubmit your request for the final data when it is available in April. On this record, we find that this matter is now moot.
CONCLUSION
For the reasons set forth above, we conclude that this matter is now moot.
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