Can a Delaware journalist get a count of inmate deaths broken down by cause and facility under FOIA?

Plain-English summary

Delaware Online reporter Hannah Edelman asked the Department of Correction for "the number of inmate deaths broken down by year, cause of death and facility from 2018 to present." She noted DOC had given a different reporter the same kind of aggregate data in 2018. DOC responded with a different format: a log listing each decedent's name, date of birth, race, date of death, and facility, with cause of death redacted because of medical privacy.

Edelman petitioned. She argued she had not asked for names; she had only asked for aggregate counts. Stripping names would have made the data non-identifying, so cause of death would not have invaded any individual's privacy. She also pointed out DOC had previously released the same kind of summary.

DOC's response included an affidavit from its FOIA coordinator. The affidavit explained how DOC compiled the per-decedent log it produced (per the federal Death in Custody Reporting Act). It explained that DOC had changed how it categorized causes of death since 2018 (the old binary "natural cause" or "completed suicide" categories did not capture overdoses or homicides). DOC's counsel added unsworn statements that DOC did not have other documents in the format Edelman sought.

The AG found a violation. The affidavit told the AG how DOC produced the log. It did not describe what DOC searched for to determine whether the requested aggregate format existed. Under Judicial Watch, that affidavit gap is independently a FOIA violation. Counsel's unsworn statements about the no-create defense could not fill the gap. The AG recommended DOC supplement its response with a proper affidavit and, if records exist in the requested aggregate format, produce them.

What this means for you

If you are a Delaware journalist requesting government statistics

Two practical lessons:

• Be specific about format. Edelman asked for "the number of inmate deaths broken down by year, cause of death and facility." That is an aggregate count. DOC produced a per-decedent log with redactions. The agency's job is to search for what you asked for, in the format you asked for, not to substitute a different format.
• The Judicial Watch affidavit must match what was requested. If the agency's affidavit only describes a search for a different format, it has not met its burden. Push back and cite this opinion: 22-IB39.

If you are a Delaware records officer at a state agency

Build the affidavit to track the request. Specifically:

• State that you searched (or did not search) for records in the format the requester asked for.
• If you produced records in a different format, explain why (e.g., the requested aggregate does not exist as a stored record, or it would require new compilation work).
• If you are invoking the no-create rule, the affidavit needs to actually say that no record exists in the requested format and describe what was searched.

If you are an oversight advocate or researcher tracking deaths in custody

Federal law (the Death in Custody Reporting Act) requires DOC to track each death. The data exists at the individual level. Aggregate counts by year, cause, and facility are routine summaries that any agency capable of federal compliance reporting can produce. If DOC says it cannot, ask why; the agency may be invoking the no-create rule on records it could trivially compile.

For deaths in custody specifically, federal data also flows to the Bureau of Justice Statistics. Cross-checking BJS data against state FOIA productions is a useful sanity check.

Common questions

Q: Can DOC redact cause of death on medical privacy grounds?
A: For an identified person, yes, § 10002(o)(1) protects medical files. For aggregate counts (e.g., "8 deaths from overdose in 2021 across all facilities") with no identifiers, the privacy interest is much weaker. The opinion did not directly resolve this, but it pointed out that aggregate format would minimize the privacy concern.

Q: Does FOIA force DOC to create a new aggregate?
A: No. The no-create rule is alive (see Op. 15-IB02). But the rule has to be invoked through a sworn affidavit explaining what was searched and what was found. If DOC already maintains the data at the individual level, generating a count is more like a routine query than creating a new record.

Q: Why did the 2018 release matter?
A: It cut against DOC's no-create defense. If DOC produced a similar aggregate in 2018, a court will ask why the agency cannot produce the same now. The opinion notes DOC changed its reporting categories, which is a legitimate explanation but does not, by itself, defeat the request.

Q: What is the Death in Custody Reporting Act?
A: A federal statute requiring states (as a condition of certain federal funding) to report inmate deaths to DOJ. DOC's per-death tracking is partly driven by this federal requirement.

Q: What does an "adequate search" look like in this context?
A: An affidavit stating: (1) what databases or systems were searched (e.g., the death-in-custody database); (2) what queries or filters were used; (3) what results came back; and (4) why the results either match or don't match the request format.

Q: If DOC supplements with a proper affidavit and still says no record exists, what then?
A: Edelman could file a follow-up petition or sue in Superior Court. The court reviews the affidavit's adequacy. She could also reformulate the request to ask DOC to produce the underlying data and let her aggregate it.

Background and statutory framework

Judicial Watch standard. A public body asserting the no-create defense or any "we have produced everything" position must support that claim with a sworn affidavit describing the search efforts and results. Generalized statements or attorney representations do not meet the burden under § 10005(c).

No-create rule. Delaware AG opinions confirm FOIA does not require an agency to create a new record. But the rule applies to the requested record, not a substitute. If the requester asks for an aggregate count and the agency holds individual data, the answer to "is there an aggregate" is a real question the affidavit must address.

Personal privacy under § 10002(o)(1). This exemption protects identifiable medical information about specific individuals. Aggregated data without identifiers tends to fall outside the exemption, though re-identification risk in small populations (e.g., a single facility with few deaths) can complicate that analysis.

Citations and references

Statutes:
- 29 Del. C. § 10005(c) (burden of proof)
- 29 Del. C. § 10002(o)(1) (privacy exemption)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. June 7, 2022)

Prior AG opinions:
- Del. Op. Att'y Gen. 15-IB02 (June 17, 2015)
- Del. Op. Att'y Gen. 06-IB17 (Aug. 21, 2006)
- Del. Op. Att'y Gen. 08-IB05

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/10/17/22-ib39-10-17-2022-foia-opinion-letter-to-hannah-edelman-re-foia-complaint-concerning-the-delaware-department-of-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/10/Attorney-General-Opinion-No.-22-IB39.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB39
October 17, 2022
VIA EMAIL
Hannah Edelman
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Correction

Dear Hannah Edelman:
We write regarding your correspondence alleging that the Delaware Department of
Correction ("DOC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 1000110007 ("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. For the
reasons set forth below, we conclude that the DOC violated FOIA, as the DOC failed to meet its
burden of justifying the denial of access to the requested record.

BACKGROUND
On August 30, 2022, you submitted a request to the DOC asking for the "number of inmate
deaths broken down by year, cause of death and facility from 2018 to present." 1 The request stated
that this same information for an earlier time period was previously provided to another reporter
on June 11, 2018. The DOC responded on September 14, 2022, providing a log that listed the
names of inmates, dates of birth, dates of death, race, and facility, but the cause of death was
redacted due to the privacy of medical information.
This Petition followed, alleging that the response was improper because you "did not ask
for the names of people who died in DOC custody – only the total number of inmates who died

1

Petition.

broken down by cause of death." 2 You assert that excluding the names from this record would
have made this information non-identifiable, and you believe providing the cause of death would
not violate medical privacy under 29 Del. C. § 10002(o)(1). Further, you contend that the DOC
has a precedent of providing this information, and as proof, you attached the 2018 response with
the information in the format you requested.
The DOC, through its counsel, responded on September 22, 2022 to the Petition
("Response"). The DOC's counsel claims that its response was proper and in support of this
contention, provided the affidavit of its FOIA coordinator. The DOC's FOIA coordinator attested
that "the DOC tracks the decedent's name, date of birth, race, date of death, location of death, and
cause of death in compliance with the federal Death in Custody Reporting Act," and that to respond
to your request, he contacted the DOC's Bureau of Healthcare, Substance Abuse, and Mental
Health Services who provided this log with the name, dates of birth and death, race, facility, and
cause of death. The FOIA coordinator attests that he produced this log to you for the timeframe
requested, after redacting the cause of death. The DOC's counsel further explains in the Response,
which is not sworn under penalty of perjury, that for its 2018 response to the previous request, the
DOC created those summaries, which classified the deaths by natural cause or completed suicide,
but those binary choices did not account for overdose deaths or homicides. The DOC's counsel
states that since this 2018 request, the DOC changed the way it collected and reported the cause
and manner of death to the U.S. Department of Justice to comply with its statutory obligations,
and the DOC's past provision of information in this format does not obligate the DOC to continue
to collect and produce information in that format. In addition, the DOC's counsel states that the
DOC did not have other documents in the format you sought.

DISCUSSION
The public body has the burden of proof to justify its denial of access to records. 3 The
Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a
public body to establish facts on the record that justify its denial of a FOIA request." 4 "[U]nless
it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the
burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to
determine whether there are responsive records and the results of those efforts." 5 The Judicial
Watch, Inc. case is still pending, and at this point in the proceedings, the Superior Court of
Delaware has indicated that generalized assertions in the affidavit will not meet the burden. 6 If a

2

Id.

3

29 Del. C. § 10005(c).

4

267 A.3d 996, 1010 (Del. 2021).

5

Id. at 1012.

6

Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at *3 (Jun. 7, 2022) ("The Court
finds that the generalized statements in the Affidavit do not meet 'the burden to create a record
2

public body does not have existing responsive records, FOIA does not require a public body to
create a new record to respond to a request. 7
In this case, the request sought specific information in a format that the DOC provided
several years ago in unredacted form. Despite the DOC's acknowledgement that it previously
provided this information in the form you requested, the affidavit merely describes how the DOC
obtained the record that the DOC currently provided to you, which was produced in a form with
more than what you requested, and with the cause of death redacted. However, the affidavit does
not provide specific sworn testimony regarding whether the DOC made any efforts, and the results
of those efforts, to determine whether there are any DOC records with this specific information in
the particular format requested. The DOC counsel's unsworn statements in the Response that
expound on the circumstances regarding these records cannot be used to satisfy the DOC's burden
of proof.
Thus, we find that the DOC violated FOIA, as the DOC did not meet its burden of justifying
the denial of access to the requested information. It is recommended that the DOC, in compliance
with the timeframes set forth in Section 10003, supplement its response to your request to address
these issues, and if applicable, provide any existing record in the format with the specific
information you requested.

CONCLUSION
For the foregoing reasons, we determine that the DOC violated FOIA, as the DOC failed
to meet its burden of justifying the denial of access to the requested record.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Gregory E. Smith, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

from which the Superior Court can determine whether the University performed an adequate
search for responsive documents.'").
7

Del. Op. Att'y Gen. 15-IB02, 2015 WL 3919061, at 2 (Jun. 17, 2015) ("FOIA does not
require a public body to create records that do not exist . . . .") (citing Del. Op. Att'y Gen. 06-IB17,
2006 WL 2630107, at 4 (Aug. 21, 2006)); Del. Op. Att'y Gen. 08-IB05, 2008 WL 1727613 at *1
("There are no existing documents that provide the information [the requesting party] seeks, and
he has no right under FOIA to anything other than existing documents.").
3