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

The opinion turns on a format mismatch. Edelman asked for aggregate counts ("the number of inmate deaths broken down by year, cause of death and facility"). DOC produced a per-decedent log with the cause of death redacted. The AG held that a public body's burden under § 10005(c) is to establish, under oath, the efforts it made to find records responsive to what was actually requested. An affidavit that only explains the record the agency chose to produce does not meet that burden.

If you are a Delaware records officer at a state agency

The opinion describes what a Judicial Watch affidavit must contain: sworn testimony about the efforts taken to determine whether responsive records exist and the results of those efforts. The AG found DOC's affidavit deficient because it described how DOC compiled the log it produced but did not address whether DOC searched for records in the aggregate format requested. The AG also held that counsel's unsworn statements in the Response could not satisfy the public body's burden of proof.

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

The opinion notes that DOC tracks each decedent's name, date of birth, race, date of death, location, and cause of death in compliance with the federal Death in Custody Reporting Act. It does not resolve whether DOC can or must produce aggregate counts; it holds only that DOC's affidavit failed to address that question, and it recommends DOC supplement its response.

Common questions

Q: Can DOC redact cause of death on medical privacy grounds?
A: DOC redacted cause of death citing § 10002(o)(1), which protects identifiable medical information. The AG did not decide whether that redaction was proper. It resolved the petition on the affidavit gap instead. Edelman argued that stripping names would make the data non-identifiable and lessen the privacy concern, but the opinion did not rule on that point.

Q: Does FOIA force DOC to create a new aggregate?
A: No. The opinion confirms FOIA does not require a public body to create a record that does not exist (citing Op. 15-IB02, 06-IB17, and 08-IB05). But the no-create defense still has to be supported by a sworn affidavit describing what was searched and what was found, which DOC's affidavit did not do here.

Q: Why did the 2018 release matter?
A: Edelman attached DOC's 2018 response, which provided the same kind of summary in the format she requested. The opinion notes DOC's explanation that it had since changed how it categorized cause and manner of death to comply with federal reporting, and that its past provision of that format does not obligate it to continue. The AG did not resolve whether the 2018 precedent required production now; it found the affidavit inadequate regardless.

Q: What is the Death in Custody Reporting Act?
A: A federal statute referenced in DOC's affidavit. DOC attested that it tracks each decedent's information "in compliance with the federal Death in Custody Reporting Act." The opinion does not describe the statute beyond that.

Q: What did the AG recommend?
A: The AG recommended that DOC, within the timeframes in § 10003, supplement its response to address these issues and, if applicable, provide any existing record in the format with the specific information requested.

Background and statutory framework

Judicial Watch standard. Under § 10005(c), a public body must establish facts on the record that justify its denial of a FOIA request. As the opinion quotes from Judicial Watch, unless it is clear on the face of the request that the records are not subject to FOIA, the public body "must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The Superior Court in the pending Judicial Watch case indicated that generalized statements in an affidavit do not meet that burden.

No-create rule. The opinion confirms that if a public body does not have existing responsive records, FOIA does not require it to create a new record to respond to a request. It cites Op. 15-IB02, 06-IB17, and 08-IB05 for that point.

Personal privacy under § 10002(o)(1). This exemption protects identifiable medical information. DOC invoked it to redact cause of death from the log it produced. The opinion did not decide whether the exemption properly applied, because it resolved the petition on the affidavit gap.

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