Can the Delaware Department of Correction be forced to disclose the names, ID numbers, and incarceration dates of elderly inmates in response to a FOIA request?
Plain-English summary
The ACLU of Delaware asked the Department of Correction (DOC) for two things in four age-banded categories (76+, 71-75, 66-70, 61-65): (1) the count of incarcerated people in each band, and (2) the name, State Bureau of Identification (SBI) number, and date of incarceration for each person in each band.
The DOC gave the counts but refused the names, SBI numbers, and dates. The ACLU petitioned the AG.
The Chief Deputy AG ruled the denial was proper. Two state statutes independently block the release:
11 Del. C. § 4322(a) makes presentence reports, supervision history, and "all other case records" obtained by DOC employees in their official duty privileged. The DOC's electronic database, populated by court records, the Delaware Criminal Justice Information System (DELJIS), and inmate intake interviews, qualifies as case records under this statute. None of the statutory exceptions for disclosure (courts, parole boards, the AG, certain authorized recipients) applied to the ACLU's request.
11 Del. C. § 8513(d), separately, bars anyone other than the State Bureau of Identification from disseminating "criminal history record information." That term, defined in § 8502(4), covers identifiable descriptions and notations of arrests, detentions, charges, dispositions, sentencing, correctional supervision, and release. Names plus SBI numbers plus incarceration dates fit squarely within that.
So the DOC's denial of the personally identifying information was proper. The aggregate counts were the most the agency could lawfully share, and it shared them.
What this means for you
If you advocate for older or sick incarcerated people
Aggregate counts of inmates by age band are obtainable through FOIA. The personally identifying details are not, even if you have a research or advocacy purpose. To reach individual data, you generally need a court order, an authorized agency relationship (e.g., the Public Defender, an academic IRB-approved data agreement with DOC), or for the inmate themselves to consent and provide the information.
If you research correctional populations
Two paths give you more granularity than a FOIA request will: (1) request published statistical reports from DOC, the Statistical Analysis Center, or the Sentencing Accountability Commission, which compile numbers without identifiers; and (2) negotiate a research agreement with DOC under which you can get de-identified or restricted-use data subject to a confidentiality protocol. DOC has done such agreements before with university researchers.
If you're a Delaware FOIA requester broadly
This opinion is one in a sequence (see 24-IB50, also from the same DOC) showing the AG enforcing both statutory exemptions and the no-create-records rule against requests aimed at producing comprehensive lists of incarcerated people. Build your records strategy around documents the agency already has rather than asking for queries that combine personally identifying fields.
If you're a corrections officer or DOC FOIA coordinator
The opinion is straightforward but worth keeping handy. When a request asks for inmate-identifying information, the answer is almost always to disclose the aggregate count (when the database supports it) and withhold the identifiers under § 4322(a) and § 8513(d). Cite both statutes, because each is independently sufficient.
Common questions
Q: Why did the AG accept "no" for names but allow aggregate counts?
A: Aggregate counts are not "criminal history record information" because they are not tied to identifiable individuals. The statutory bars apply to identifiable data. Removing the identifiers (and not aggregating below a threshold that could re-identify) satisfies the statute and FOIA's accessibility goal at the same time.
Q: What's an SBI number?
A: A Delaware State Bureau of Identification number, the unique identifier the state assigns to a person who has been arrested or fingerprinted. It is the linkage key between an individual and their criminal history record. Releasing an SBI number plus a name effectively reveals criminal history.
Q: What is "criminal history record information" under § 8502(4)?
A: A defined statutory term covering "identifiable descriptions and notations of arrests, detentions, indictments, informations or other formal criminal charges and any disposition arising therefrom, sentencing, correctional supervision and release." It is broader than just arrest records.
Q: Can the inmate themselves get this information?
A: Yes, generally. The bar is on third-party dissemination, not on the inmate accessing their own record. Inmates can also designate counsel or representatives in many cases.
Q: Are there any pathways for advocates?
A: Yes. (1) A court order in pending litigation. (2) A formal data-sharing agreement with the agency. (3) Legislative inquiry through a sitting representative. (4) Aggregated, de-identified analysis that does not require individual identifiers in the first place.
Q: Did the AG's office side with the DOC because the requester was the ACLU?
A: No. The opinion turns entirely on the statutory bars in § 4322(a) and § 8513(d), which apply to any requester. The ACLU's identity is not relevant to the analysis.
Citations
- 29 Del. C. § 10002(o)(6), exemption for records exempt by other statute
- 29 Del. C. § 10003(a), citizen access to public records
- 29 Del. C. § 10005(c), burden on public body
- 11 Del. C. § 4322(a), DOC case records privileged
- 11 Del. C. § 8502(4), definition of "criminal history record information"
- 11 Del. C. § 8513(d): bar on dissemination
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Del. Op. Att'y Gen. 19-IB26, prior opinion applying § 4322(a) similarly
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/12/20/24-ib52-12-20-2024-foia-opinion-letter-to-dwayne-bensing-re-delaware-department-of-correction/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/12/Attorney-General-Opinion-No.-24-IB52.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-IB52
December 20, 2024
VIA EMAIL
Dwayne Bensing, Legal Director
American Civil Liberties Union of Delaware
[email protected]
RE: FOIA Petition Regarding the Delaware Department of Correction
Dear Director Bensing:
We write regarding your correspondence, submitted 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 information.
BACKGROUND
On September 19, 2024, you submitted the following request to the DOC on behalf of the ACLU:
- The number of people currently incarcerated within DOC Level V facilities aged 76 and older as of September 19, 2024.
- 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 within DOC Level V facilities aged 71-75 as of September 19, 2024.
- For each person identified in request line 3, please provide their name, Delaware State Bureau of Identification number, and date of incarceration.
- The number of people currently incarcerated within DOC Level V facilities aged 66-70 as of September 19, 2024.
- For each person identified in request line 5, please provide their name, Delaware State Bureau of Identification number, and date of incarceration.
- The number of people currently incarcerated within DOC Level V facilities aged 61-65 as of September 19, 2024.
- For each person identified in request line 7, please provide their name, Delaware State Bureau of Identification number, and date of incarceration.
The DOC responded on October 11, 2024 by providing the total number of incarcerated people within the specified age ranges, for items 1, 3, 5, and 7; the remainder of the items were denied because the DOC "does not provide personal identification information to parties outside of the department." The ACLU followed up, asking for the DOC to meet its burden under 29 Del. C. § 10005(c) to justify denying the names, State Bureau Identification ("SBI") numbers, and dates of incarceration. The DOC responded, specifying that the requested personal information is exempt from discovery and not considered public records under Section 10002(o)(4) and (6). In addition, the DOC cited 11 Del. C. § 4322(a), 11 Del. C. § 8501, and 11 Del. C. § 8513, as prohibiting disclosure of this information. This Petition followed.
In the Petition, you argue that the DOC's response is improper. First, you contend that Section 10002(o)(4) which exempts "criminal files and records, the disclosure of which would constitute an invasion of personal privacy" only applies to the record or history of a person's contacts with the criminal justice system, which you believe does not include the names, SBI numbers and incarceration dates. With respect to 11 Del. C. § 4322(a), you allege that the protected categories in that provision, which include the presentence report, pre-parole report, supervision history, and all other cases records obtained in the discharge of official duty by any member or employee of the DOC, do not apply to the information you seek. Further, you allege that 11 Del. C. § 8513 is also inapplicable, as this provision prohibits the dissemination of criminal history record information, and you do not agree that the requested information fits within the definition of "criminal history record information."
The DOC, through its legal counsel, replied to your Petition and attached the affidavit of its Chief of Planning. The Chief attests to her familiarity with the DOC's electronic database and states that when a person is incarcerated, that person's record in the DOC system is populated with information from the courts, the Delaware Criminal Justice Information System, and the person's intake interview. The DOC argues that the exemption for criminal records and files in Section 10002(o)(4) applies, and limiting the definition of "criminal record" to criminal history is overly narrow; further, if a criminal record excludes the names, SBI numbers, and incarceration dates, such criminal history would have no utility. The DOC asserts that the requested information invades inmates' privacy, because release of this information will intrude on the inmate's physical solitude and expose inmates to unsolicited mail and communications. The DOC notes that you did not assert the need for the personally identifying information. Additionally, the DOC contends that consistent with Attorney General Opinion No. 19-IB26, 11 Del. C. § 4322(a) protects this information about inmates from disclosure. The DOC also asserts that 11 Del. C. § 8502 states that "criminal history record information" includes identifiable descriptors, and these requests for the inmate names, SBI numbers, and incarceration dates, are such descriptors and not disclosable under Section 8513(d).
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 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 case, the ACLU seeks information about the inmates housed at Level V facilities, specifically their name, SBI numbers, and incarceration dates. Pursuant to 29 Del. C. § 10002(o)(6), records specifically exempted from public disclosure by statute or common law are not considered "public records." To support denying the request under Section 10002(o)(6), the DOC invokes 11 Del. C. § 4322(a), which states, in part, as follows:
The presentence report (other than a presentence report prepared for the Superior Court or the Court of Common Pleas), the preparole report, the supervision history and all other case records obtained in the discharge of official duty by any member or employee of the Department shall be privileged and shall not be disclosed directly or indirectly to anyone other than the courts as defined in § 4302 of this title, the Board of Parole, the Board of Pardons, the Attorney General and the Deputies Attorney General or others entitled by this chapter to receive such information; except that the court or Board of Pardons may, in its discretion, permit the inspection of the report or parts thereof by the offender or the offender's attorney or other persons who in the judgment of the court or Board of Pardons have a proper interest therein, whenever the best interest of the State or welfare of a particular defendant or person makes such action desirable or helpful.
The DOC's Chief of Planning attests that the DOC's electronic database is populated by records of the courts, Delaware Criminal Justice Information System, and the inmate's intake interview, and "the information is validated and exchanged and either becomes the offender's criminal record or enhances the criminal record stored and maintained by the State Bureau of Identification." Section 4322(a) prohibits the DOC's disclosure of supervision history and case records obtained by the DOC members or employees in their official capacity, unless such disclosure meets one of the designated exceptions. We determine that this statute covering supervision history and case records applies to this inmate information sought here. As you have not made any assertions or provided a basis to conclude that any of Section 4322(a)'s exclusions apply to this matter, we find that the requested information was appropriately withheld pursuant to this statute.
Additionally, the DOC relies on 11 Del. C. § 8513(d), which governs the dissemination of criminal history record information collected by the State Bureau of Identification. With limited exceptions for law enforcement, this provision mandates that any person or agency, other than the State Bureau of Identification, is prohibited from disclosing "criminal history record information," which includes "information collected by state or federal criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations or other formal criminal charges and any disposition arising therefrom, sentencing, correctional supervision and release." Inmate names, SBI numbers, and incarceration dates qualify as identifiable descriptors and information under the definition of criminal history record information. As such, we find that the DOC sufficiently demonstrated its basis for denying access to the requested information.
CONCLUSION
For the foregoing reasons, we determine that the DOC did not violate FOIA as alleged in responding to your request.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc: Michael H. Tipton, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General