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, manages, and maintains the computer hardware, software, and communication network for the state's Criminal Justice Information System (CJIS). It supports the criminal justice community but does not itself compile the public-facing statistical report Fries was after.

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 because Fries had received the records, in draft, from SBI, the agency that maintains and reports the data. The opinion does not endorse DELJIS's substantive denial reasoning; it concluded only that the dispute was over.

What this means for you

For Delaware journalists pursuing crime statistics. The opinion records that the report Fries wanted, the National Incident Based Reporting System report, is prepared by the Delaware State Police's State Bureau of Identification (SBI), not DELJIS. After Fries resubmitted to SBI, SBI affirmed it is the public agency that maintains and reports the data, provided the 2020 and 2021 data in draft form as a courtesy, and noted the final data is typically finalized by March and available in April.

For state agencies that receive a misrouted FOIA request. The opinion describes, without separately ruling on it, that DELJIS's Executive Director called Fries the day after she petitioned to identify SBI as the agency that prepares the report, and that DELJIS provided copies of her follow-up request to SBI and SBI's response. The AG found the petition moot once Fries obtained the records from SBI.

For requesters told an agency would have to build a report. The opinion notes DELJIS's position that FOIA does not require it to compile data from other records, convert data into a new format, create programming, or run a database search, and that the report did not exist at DELJIS. The AG did not rule on that argument, resolving the matter on mootness instead.

Common questions

Why didn't DELJIS just have the data?
According to the opinion, DELJIS operates, manages, and maintains the computer hardware, software, and communication network for CJIS, but the report Fries sought, the National Incident Based Reporting System report, is prepared by the Delaware State Police's State Bureau of Identification (SBI). DELJIS told the AG it has no control over that report or over SBI and is not obliged to contact another entity to obtain records it does not control.

Did the AG decide whether the crime statistics were exempt?
No. DELJIS had denied the request citing the criminal-files and investigatory-files exemptions, 11 Del. C. ch. 85 and 86, 1 Del. Admin. C. § 1300, and 29 Del. C. § 10002(o)(6), and had also argued FOIA does not require it to compile or program data. Fries countered that aggregate crime statistics are not "criminal history record information," which the statutory definition limits to individual records. The AG did not resolve that dispute; it found the matter moot because Fries received the data from SBI.

When is the final data available?
SBI told Fries that the final 2020 and 2021 data was not yet available, that it is typically finalized by March, and that it would be available in April 2022. SBI provided the draft data as a courtesy while noting FOIA does not obligate a public body to provide drafts.

Background and statutory framework

DELJIS operates, manages, and maintains the computer hardware, software, and communication network for the Criminal Justice Information System, which supports the criminal justice community.

The petition was filed under 29 Del. C. § 10005, which lets the AG determine whether a FOIA violation has occurred. DELJIS's denial relied on the criminal-files and investigatory-files exemptions, 11 Del. C. ch. 85 and 86, and 1 Del. Admin. C. § 1300, carried into FOIA through 29 Del. C. § 10002(o)(6), which exempts records prohibited from disclosure by statute.

The AG concluded the matter was moot because Fries had received the requested data from SBI, the agency that maintains and reports it. The opinion did not reach DELJIS's substantive exemption argument or its argument that FOIA does not require compiling or programming data.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10002(o)(6): records exempt by other statute
• 29 Del. C. § 10005: citizen petition to the Attorney General
• 11 Del. C. ch. 85 and 86; 1 Del. Admin. C. § 1300: criminal-history record provisions DELJIS cited in its denial

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