If a Delaware agency previously gave me a count of records as a courtesy, does FOIA force them to keep producing that count for me on request?

Plain-English summary

Delaware passed Clean Slate, a law that automatically expunges certain criminal records (codified at 11 Del. C. § 4373A). The law took effect August 1, 2024. Meryem Dede wanted to track how many automatic expungements were actually happening, so she filed FOIA requests on October 1, 2024, November 1, 2024, December 4, 2024, and January 14, 2025, each asking for the count from August 1 through the first of the month she filed.

The first two requests, in October and November, got responses. DSP told her FOIA does not require an agency to compile data or answer questions, but as a courtesy DSP gave the numbers anyway. After the third and fourth requests, DSP changed its mind. It denied them, explaining (with affidavit support from the State Bureau of Identification Director) that it does not actually have computer programming that distinguishes Clean Slate expungements from other kinds of expungements. The earlier counts had been produced by an employee manually pulling each expungement file. With staff time scarce, DSP stopped doing the manual count and pointed Dede to a forthcoming Clean Slate report being prepared for the General Assembly.

Dede petitioned. She argued that DSP's previous willingness to produce the numbers proved it could be done quickly, that an internal email she had seen suggested one staff member could handle the request, and that pulling data from a computer system is not "creating a new record."

The Chief Deputy AG sided with DSP. Two key points:

1. The SBI Director's sworn affidavit established that the data does not exist in extractable form. There is no Clean Slate flag or query in the system today; programming to do that is "in development" but not yet built. The previous counts came from manual file-by-file review.
2. Under Vanella v. Duran, exporting "easily disclosable information stored in a computer system" is not record creation, but here there is no programming to export from. Manual review of each expungement file is record creation, which FOIA does not require.

So DSP did not violate FOIA in denying the third and fourth requests.

What this means for you

If you're a researcher or journalist tracking Clean Slate implementation

The opinion holds that FOIA does not compel DSP to produce monthly Clean Slate expungement counts, because the SBI Director's affidavit established the system cannot currently isolate those figures and the earlier counts were produced by manual file-by-file review. The opinion notes DSP "anticipates preparing information for the Clean Slate initiative for review by the public and the General Assembly" and said it would share a copy once finalized.

If you previously received data from a Delaware agency as a courtesy

The opinion holds that voluntary past production does not create a future FOIA obligation. DSP had supplied the count for the October and November requests as a courtesy, then denied the December and January requests; the AG found the denial permissible because FOIA does not require an agency to compile data or create records that do not already exist.

If you work in a Delaware agency that has been doing extra-mile data production

What carried DSP's burden was specificity in the affidavit: the SBI Director swore the data does not exist as an extractable query, that programming "to collect this data is in development but does not currently exist," and that the prior counts came from manually pulling and reviewing each expungement file. On that record the AG treated the count as record creation, which FOIA does not require.

If you advocate for criminal justice transparency

The opinion reflects that DSP's systems cannot yet isolate Clean Slate expungements from other expungement types. It holds only that FOIA does not require DSP to build that capability or to compile the count manually; it does not address whether any reporting requirement should exist.

Common questions

Q: Wasn't it inconsistent for DSP to produce the count twice and then refuse?
A: It was, but FOIA does not punish inconsistency. The legal question is whether the current denial is permissible, not whether it lines up with past practice. Sworn affidavit + no extractable data + no requirement to create records = permissible.

Q: What about the email Dede saw suggesting "one person at DSP" could fulfill the request?
A: The opinion does not address it directly, but the answer it implies: even if one person can do the work, FOIA does not require manually compiling data into a record that does not exist. The requester's burden-of-effort estimate does not control the legal analysis.

Q: Could DSP charge a fee for the manual compilation instead of denying?
A: FOIA permits cost recovery for record-search and copying, but it does not require the agency to do the work. DSP cannot be forced to bill for manual record creation. (Dede argued in her petition that DSP gave no fee option; the AG did not require one.)

Q: When will the Clean Slate report DSP referenced be available?
A: The opinion does not give a date. DSP said it "anticipates preparing information for the Clean Slate initiative for review by the public and the General Assembly" and would be willing to share a copy once it is finalized.

Q: Does this mean FOIA never reaches database queries?
A: No. Vanella v. Duran explicitly says producing easily disclosable information stored in a computer system is not record creation. The point is whether the data is easily disclosable, which means there is already programming or query infrastructure. If the agency has the query, FOIA can reach it. If the agency does not, FOIA cannot force the agency to build one.

Citations

• 11 Del. C. § 4373A, Clean Slate Act, automatic expungement
• 29 Del. C. § 10003(a), public access to records
• 29 Del. C. § 10005(c), burden on public body
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
• Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024), agency not required to create records, but data export from existing systems is not creation

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/03/20/25-ib18-3-20-25-foia-opinion-letter-to-meryem-y-dede-re-delaware-state-police-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/03/Attorney-General-Opinion-No.-25-IB18.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. 25-IB18
March 20, 2025

VIA EMAIL
Meryem Y. Dede
[email protected]

RE:

FOIA Petition Regarding the Delaware State Police, Department of Safety and
Homeland Security

Dear Ms. Dede:
We write in response to your correspondence alleging that the Delaware State Police,
Department of Safety and Homeland Security ("DSP") violated Delaware's 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 of whether a violation of FOIA has
occurred or is about to occur. For the reasons set forth below, we determine that the DSP did not
violate FOIA by denying access to the requested records.

BACKGROUND
On October 1, 2024, November 1, 2024, December 4, 2024, and January 14, 2025, you
filed requests for the same information: "how many automatic expungements (See 11 Del. C.
4373A) have happened under Delaware's Clean Slate bill from August 1, 2024 (the day it was
enacted), to [the first day of the month in which the FOIA request was submitted]." 1 The DSP
responded to the first two requests submitted in October and November by stating that FOIA does
not require a public body to compile data, answer questions, or create records that do not already
exist, but the DSP still included the requested number of automatic expungements in its responses.
However, after a delay during which the DSP noted that fees might be assessed through a cost
1

Petition (emphasis in original).

estimate, the DSP denied both the December and January requests on January 22, 2025, stating
that the "DSP does not possess an existing record containing this information, nor does DSP
maintain such statistics in the normal course of its business." 2 The DSP reasserted that FOIA does
not require a public body to compile data, answer questions, or create records that do not already
exist. The DSP noted that it previously compiled this data as a courtesy, and "given the
considerable staff time otherwise diverting scarce resources to repeatedly compile the
information," the DSP could not provide the requested data at that time. 3 The DSP also noted that
it anticipates preparing information for the Clean Slate initiative for review by the public and the
General Assembly and would be willing to share a copy, once it is finalized. This Petition
followed.
In the Petition, you state that the DSP did not offer an option to pay a fee to receive the
information and gave no explanation for why the DSP staff was able to quickly compile the
numbers in response to the October and November requests, but the December and January
requests were too difficult. Further, you argue that while FOIA does not require creating a new
record, a simple exportation of data to a spreadsheet does not constitute a new record and you
believe that "[i]t is likely that putting together the number of people who have received an
automatic expungement is a simple computer function." 4 You assert that an internal email the
DSP staff mistakenly sent to you to implies that "responding to these FOIA requests might be able
to be fulfilled by a single person at DSP." 5
On February 25, 2025, the DSP, through its legal counsel, replied to the Petition
("Response"). The Response asserts that these requested statistics do not exist, nor is there existing
programming to produce this information. The DSP states that to answer the first two requests, an
individual manually pulled and reviewed each expungement file to count the number of Clean
Slate expungements. The Response included the affidavit of the Director of the State Bureau of
Identification ("SBI"), who attests that the "SBI does not have computer [programming] that
differentiates between other expungement types and Clean Slate expungements" and programming
"to collect this data is in development but does not currently exist." 6

2

Id.

3

Id.

4

Id.

5

Id.

6

Response, Ex. A.
2

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records. 7 The public body has the burden of proof to justify its denial of
access to records. 8 In certain circumstances, a sworn affidavit may be required to meet that
burden. 9 While a public body is not required to create a new document in response to a FOIA
request, producing "easily disclosable information stored in a computer system does not require
the creation of a new record." 10 In this case, you seek specific statistics, the number of automatic
expungements under the Clean Slate bill, and the DSP met its burden of demonstrating under oath
that it is not able to produce this information from its computer system, as it does not have the
existing capability to isolate the number of expungements under the Clean Slate bill. In reliance
on these sworn statements, we find no violation of FOIA occurred when DSP denied the December
and January requests.

CONCLUSION
For the foregoing reasons, we conclude that the DSP did not violate FOIA by denying
access to the requested records.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc:

Dennis Kelleher, Deputy Attorney General
Dorey Cole, Deputy Attorney General

7

29 Del. C. § 10003(a).

8

29 Del. C. § 10005(c).

9

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

10

Vanella v. Duran, 2024 WL 5201305, at *9 (Del. Super. Dec. 23, 2024).
3