Does Delaware's Department of Correction have to compile a list of incarcerated misdemeanants from its database to answer a FOIA request about voter eligibility?
Plain-English summary
The ACLU of Delaware asked the Department of Correction (DOC) for a list of incarcerated people whose lead charge was a misdemeanor, and a separate list of those held pre-trial, with names, State Bureau of Identification (SBI) numbers, and incarceration dates. The ACLU was tracking voter eligibility, since people held on misdemeanors and pre-trial detainees can generally still vote in Delaware.
The DOC denied the request. Initially it cited the litigation exemption, then in its response to the petition argued more substantively that its database does not have a designated search to produce such a list, and any report it could generate would have to be cross-referenced manually with the Delaware Criminal Justice Information System (DELJIS) and other databases to be accurate.
The Chief Deputy AG ruled the denial was proper. FOIA does not require a public body to create a record that does not exist or to compile data from multiple agencies' systems to fulfill a request. The Deputy Chief of Planning, Research, and Reentry attested to the database limitations under oath, which was sufficient to meet the burden.
But the AG also warned the DOC: this is the second time in two opinions where the agency raised its substantive defense for the first time in the litigation response, not in its initial denial. FOIA requires the agency to state its reasons up front. Doing it later is itself problematic, even when the underlying denial holds up.
What this means for you
If you submit aggregate-data FOIA requests in Delaware
A request for "how many people fit category X" can be denied if the agency's database is not set up to answer that question. You will likely have a stronger result if you ask for records the agency already has in document form (incarceration rosters, daily population reports, monthly statistics releases) rather than asking for a custom query result. If you do need an aggregate, frame the request as "any existing reports or summaries that include this information" and let the agency produce what already exists.
If you're an agency FOIA coordinator
Two practical lessons. First, when your initial denial is based on exemption A, do not pivot to defense B in the petition response. The AG's office is increasingly explicit about wanting the substantive rationale in your first reply to the requester. Second, if the answer is "we cannot produce this without manual cross-referencing across multiple state systems," put that in writing in the original denial with enough detail that the requester can either narrow the request or seek the data from a single-source agency (here, DELJIS).
If you're a voting rights advocate
The opinion does not say anything about the merits of incarcerated-voter eligibility. It says only that DOC's response to a request for aggregate counts was procedurally adequate. If you need this data for advocacy or litigation, the path is probably to (1) request existing reports from DOC, (2) request data extracts from DELJIS or the Department of Elections, or (3) negotiate a research agreement with the agencies that have query capability.
If you're a journalist covering Delaware corrections
This opinion confirms that a DOC database query for voter-eligibility analysis is not something the agency can be compelled to run via FOIA. For data-driven reporting, build the analysis from records the agency already produces, or seek records from the Sentencing Accountability Commission or the Statistical Analysis Center, which more often produce aggregate reports.
Common questions
Q: Does Delaware FOIA require agencies to create new records?
A: No. The opinion confirms that FOIA does not require a public body to compile data from other public records or create programming to generate a new report. The agency's duty is to produce existing records.
Q: Can the DOC be forced to give me the names of incarcerated people?
A: This opinion did not reach the merits of disclosing names and SBI numbers, because the threshold issue (whether DOC could produce an accurate aggregate at all) was dispositive. A separate opinion (24-IB52) addressed similar requests for personally identifying information about incarcerated people and held those exempt under 11 Del. C. § 4322(a) and § 8513(d).
Q: What's an "affidavit" requirement under Delaware FOIA?
A: Under Judicial Watch v. Univ. of Delaware (Del. 2021), a public body that denies a FOIA request often has to submit a sworn statement explaining what was searched, by whom, and what was found. A general assertion is not enough. The DOC's affidavit here described the database limitation specifically enough to satisfy this standard.
Q: What was the litigation exemption the DOC originally cited?
A: 29 Del. C. § 10002(o)(9), which exempts records pertaining to pending or potential litigation. The DOC raised it because of an earlier ACLU lawsuit over ballot access for incarcerated voters. The AG did not need to reach this question because the no-records-exist defense disposed of the petition.
Q: What's the takeaway for the next requester?
A: Ask narrower, document-focused questions. Instead of "give me a list of every incarcerated misdemeanant," ask "produce DOC's most recent monthly population report, the daily lockup roster as of [date], or any standing report DOC produces that includes lead-charge categories." If those reports exist, you get them.
Citations
- 29 Del. C. § 10003(a), citizen access to public records
- 29 Del. C. § 10005(c), burden of proof on public body
- 29 Del. C. § 10002(o)(9), litigation exemption
- 11 Del. C. § 4322(a): DOC case-records confidentiality
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Del. Op. Att'y Gen. 17-IB02, FOIA does not require compilation
- Del. Op. Att'y Gen. 15-IB02, FOIA does not require record creation
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/11/26/24-ib450-11-26-2024-foia-opinion-letter-to-andrew-bernstein-re-delaware-department-of-correction/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/12/Attorney-General-Opinion-24-IB50.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB50
November 26, 2024
VIA EMAIL
Andrew Bernstein
American Civil Liberties Union of Delaware
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Correction
Dear Mr. Bernstein:
We write regarding your correspondence, on behalf of the American Civil Liberties Union of Delaware ("ACLU"), alleging that the Delaware Department of Correction ("DOC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 find that the DOC did not violate FOIA by denying access to the requested records.
BACKGROUND
On August 19, 2024, the ACLU filed a request "seeking information about Delaware's incarceration numbers related to voter eligibility." Specifically, the ACLU sought:
- The number of people currently incarcerated within DOC Level V facilities with a lead charge of a misdemeanor offense.
- For each person identified in request line 1, please provide their name, Delaware State Bureau of Identification number, and date of incarceration.
- The number of people currently incarcerated on pre-trial detention within DOC Level V facilities.
- For each person identified in request line 3, please provide their name, Delaware State Bureau of Identification number, and date of incarceration.
On September 18, 2024, the DOC denied this request, asserting the records were exempt pursuant to 29 Del. C. § 10002(o)(9). This Petition followed.
This Petition alleges that the DOC has not met its burden to justify its denial of this information, because the DOC failed to specifically identify why the requested information has been denied. You allege that the litigation exemption and the concerns with personally identifiable information do not apply here. You allege that the litigation regarding ballot access to incarcerated individuals was dismissed in August and cannot be appealed now. As such, you argue that there is no basis for the DOC to assert the potential litigation exception, now the claim has been dismissed, nor would eligible incarcerated individuals be involved in future litigation. Regarding any concerns about personally identifiable information, you contend that the exemptions involving personal privacy, Sections 10002(o)(1) and (4), are both inapplicable, as your requests do not involve personnel, medical, or pupil files or criminal files or records.
The DOC, through its legal counsel, replied to the Petition ("Response"). The DOC argues that the litigation exemption applies, as the previous lawsuit was merely dismissed for lack of jurisdiction and standing and that the appeal right was still pending at the time of DOC's response. The DOC asserts that the matter also could be refiled, and the requested records have a clear nexus to the potential litigation about incarcerated individuals. Additionally, the DOC argues that it does not keep the records in a manner that would provide accurate information regarding voter eligibility. To support this, the DOC provided the affidavit of its Deputy Chief of Planning, Research, and Reentry, who attests she is intimately familiar with the DOC's electronic records database and running reports in this system, and the current system "is not equipped with a designated search function that could produce the above-requested information" and "any report generated would require manual verification for accuracy, often by cross-referencing with the criminal records database of other agencies like DELJIS." The DOC maintains that FOIA does not require it to convert data into a new format or create programming or request records from another public body outside its control. Producing these records, the DOC argues, would "require extensive programming and data from at least three separate State agencies."
Finally, the DOC points out that the other interactions between ACLU and the DOC regarding a similar matter do not relate to this request, but the Petition has "attempted to expand the records request made on August [19], 2024, into a new request for registered incarcerated voter's names and identifying information." If such a request had been submitted, the DOC asserts this information would be exempt from FOIA based on 11 Del. C. § 4322(a) and 11 Del. C. § 8513(d).
DISCUSSION
The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden. In this instance, the DOC asserts in its Response to this Petition that it does not have the records requested. The DOC's Deputy Chief of Planning, Research, and Reentry attests that current system could not accurately produce the requested information and "any report generated would require manual verification for accuracy, often by cross-referencing with the criminal records database of other agencies like DELJIS."
As the DOC provided sworn statements attesting that it does not have the requested records and FOIA does not require a public body to create programming or compile information from different sources to create a new record in response to a request, we find that the DOC met its burden to justify the denial of access to these records. As this rationale for denying the request was presented for the first time in the DOC's Response, we caution the DOC to fully assert its basis for denying the request in its response to the requesting party.
CONCLUSION
Accordingly, we determine that the DOC did not violate FOIA by denying access to the requested records.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc: Michael H. Tipton, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General