Can Delaware State Police deny a request for 2025 expungement statistics without sworn evidence of its search?

Plain-English summary

Meryem Dede asked the Delaware State Police (DSP) for counts of expunged records during parts of 2024 and 2025 and for mandatory-expungement fee totals. DSP supplied information from its 2024 annual report, said it would update the 2025 statistics when prepared, and preliminarily compiled 2025 fee totals. Dede challenged the absence of two requested 2025 expungement counts, citing data she had obtained from the Governor's Office.

DSP said the Governor's Office information might be preliminary and that DSP did not yet have finalized responsive records. The AG did not decide whether this position was valid or whether DSP possessed the particular data Dede sought. It found a FOIA violation because DSP supplied no sworn statements supporting its response or demonstrating an adequate search for the two disputed portions of the request.

The AG noted that a public body need not create a new document for a FOIA request, while producing easily disclosable information stored in a computer system does not require creating a new record. It recommended that DSP review its records and supplement its response with additional records, responses, or information if appropriate under FOIA. It did not order production of specified statistics or an affidavit as a remedy.

What this means for you

If you request expungement statistics

The violation finding concerns DSP's proof for denying two specific requests for 2025 expungement counts. Dede cited data from the Governor's Office to question DSP's response, but the AG did not find that DSP held the same data or decide that preliminary figures had to be released.

If you answer FOIA requests for a public body

If the existence of responsive data is disputed, the Judicial Watch rule quoted here requires a sworn account of the efforts to determine whether responsive records exist and the results, unless the request clearly seeks records outside FOIA. DSP provided no sworn statements for its position. The opinion leaves the ultimate availability of the requested counts open.

If you advise an agency maintaining data systems

The opinion cites Vanella for the limited proposition that producing easily disclosable information stored in a computer system does not create a new record. It does not find that these particular statistics were readily extractable or that DSP's 'not finalized' explanation was false. The AG recommended a review and supplemental response if appropriate.

Background and statutory framework

Dede's petition challenged DSP's response to two 2025 count requests. She said the Governor's Office had provided data that suggested the numbers existed. DSP responded that such information might be preliminary and that it intended to supplement once finalized data appeared in a public record. The AG recounted both positions and resolved the petition on DSP's failure to provide sworn support for the denial.

Under Section 10005(c), as quoted from Judicial Watch, a public body must establish facts on the record justifying denial. Unless the request itself clearly seeks records outside FOIA, it must state under oath what it did to determine whether responsive records exist and what those efforts found. The opinion also cites Vanella on easily disclosable computer data. Neither citation substitutes for a factual finding that DSP possessed the requested 2025 counts.

Common questions

Did the AG find that DSP had the 2025 expungement counts?

No. It found that DSP had not supported its denial with sworn statements, including a sworn account of an adequate search. The opinion did not determine what records DSP actually held.

Did the Governor's Office data prove DSP's response false?

The petitioner cited that data, and DSP said it might be preliminary. The AG did not resolve the discrepancy. Its violation finding rested on the absence of sworn support for DSP's response.

Does extracting data from a computer always count as making a new record?

No. The opinion quotes Vanella that producing easily disclosable information already stored in a computer system does not require creating a new record. It does not decide whether the particular requested numbers met that description.

What did the AG recommend next?

DSP should review its records within Section 10003's timeframes and supplement its response with any additional records, responses, or information appropriate under FOIA. The recommendation does not specify a particular form of supplement or order production of numbers.

Citations

• Statutes: 29 Del. C. § 10003(a) (access and copying); § 10005(c) (burden of proof); 11 Del. C. § 4373(e) (fee provision quoted in request).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021); Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at 3 (Del. Super. Jun. 7, 2022); Vanella v. Duran, 2024 WL 5201305, at 9 (Del. Super. Dec. 23, 2024).

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/04/16/26-ib16-04-16-2026-foia-opinion-letter-to-meryem-dede-esq-re-delaware-state-police/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/04/Attorney-General-Opinion-No.-26-IB16.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400
820 NORTH FRENCH STREET
FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 26-IB16

April 16, 2026

VIA EMAIL

Meryem Dede, Esq.
[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 violated FOIA by failing to demonstrate through sworn statements that the identified portions of your request for records were appropriately denied.

BACKGROUND

On October 22, 2025, you filed three FOIA requests with the DSP, as follows:

1. How many records the State Police have expunged through either the mandatory or automatic expungement process (no need to differentiate) between: a. November 1, 2024 and December 31, 2024; and b. January 1, 2025 and October 1, 2025.
 2. How many records the State Police have expunged through any expungement process (no need to differentiate) between: a. November 1, 2024 and December 31, 2024; and b. January 1, 2025 and October 1, 2025.

3. I’d like to know how much the State Bureau of Identification has collected in fees during the following time frames for mandatory expungements under 11 Del. C. § 4373(e) (“The State Bureau of Identification may promulgate reasonable regulations and a reasonable fee schedule to accomplish the purposes of this section.”): a. November 1, 2024 and December 31, 2024; and b. January 1, 2025 and October 1, 2025. 1

On March 11, 2026, the DSP responded by providing a link to the Delaware State Police 2024 Annual Report and reproducing a portion of that report which addressed expungements and the Clean Slate section. The DSP stated it would update its response to you with the 2025 statistics once the data is prepared for the 2025 report or the General Assembly. The DSP asserted that it is not required to create records that do not exist, but nonetheless, it preliminarily compiled the 2025 monthly and yearly totals for the mandatory expungement fee collection. This Petition followed.

In the Petition, you contend that the DSP left two portions of your request unanswered, specifically, “how many records the State Police have expunged through either the mandatory or automatic expungement process (no need to differentiate) between: . . . (2) January 1, 2025 and October 1, 2025” and “how many records the State Police have expunged through any expungement process (no need to differentiate) between: . . . (2) January 1, 2025 and October 1, 2025.” 2 While awaiting the DSP’s response, you assert that you requested data from the Office of the Governor, which you received in January 2026. You contend that because of the data you received from the Office of the Governor, the DSP appears to have the “exact data on the number of expungements they issued not just for January 1, 2025 through October 1, 2025,” but “for the entire calendar year of 2025” and “these expungements delineated by type, whereas my request did not ask [the DSP] to differentiate between automatic expungements and mandatory expungements, which [the DSP] previously claimed they are unable to do.” 3 In light of this discrepancy, you requested our Office review the DSP’s response “and determine whether the agency conducted an adequate search and complied with its obligations under the state’s FOIA statute.” 4

1
Petition.
2
Id.
3
Id.
4
Id.

2
 On March 27, 2026, the DSP, through its legal counsel, replied to the Petition (“Response”). The DSP points out that it provided you with the 2024 data and stated it would supplement its response once the 2025 data become available. The DSP argues that just because you were able to obtain responsive information which is “perhaps preliminary in nature” from another public source does not make the DSP’s response invalid or inappropriate. 5 The DSP was planning on supplementing its response once the data had been finalized and set forth in a public record, as it did previously with the 2024 data. The DSP further notes that it is “not surprising that executive agencies report various information and data to the Office of the Governor” and “FOIA does not prevent state agencies, or [the Governor’s Office], from releasing preliminary data or answering inquiries posed by constituents and interested stakeholders (assuming no other legal bar).” 6

DISCUSSION

Delaware’s FOIA law “was enacted to ensure governmental accountability by providing Delaware’s citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities.” 7 FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 8 The public body has the burden of proof to justify its denial of access to records. 9 In certain circumstances, a sworn affidavit may be required to meet that burden. 10

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.” 11 “[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.”12

5
Response.
6
Id. (emphasis in original).
7
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
8
29 Del. C. § 10003(a).
9
29 Del. C. § 10005(c).
10
Judicial Watch, Inc., 267 A.3d at 1008-1012.
11
Id. at 1010.
12
Id. at 1012.

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Generalized assertions in the affidavit will not meet the burden. 13 For example, the Superior Court of Delaware determined that an affidavit outlining that legal counsel inquired about several issues, without indicating who was consulted, when the inquiries were made, and what, if any documents, were reviewed, was too generalized to meet this standard.

Here, you challenge the DSP’s assertion that it currently does not have the requested information responsive to those two portions of the request and ask our Office to determine whether the DSP performed an adequate search for this information. 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.” 14 In this case, you seek specific sets of statistics. Neither party alleges that such information is not subject to FOIA on its face. Rather, the DSP intends to produce such records but argues that despite what you received from the Governor’s Office, the DSP currently does not have “finalized” responsive records to produce. Because the DSP has not produced any sworn statements to support its Response, including statements demonstrating it conducted an adequate search for the requested records, we must find the DSP in violation of FOIA. We recommend that the DSP, in compliance with the timeframes set forth in Section 10003, review its records and supplement its response with any additional records, responses, or information, if appropriate under FOIA.

CONCLUSION

For the foregoing reasons, we conclude that the DSP violated FOIA by failing to demonstrate through sworn statements that the identified portions of your request for records were appropriately denied.

Very truly yours,

__________
Daniel Logan
Chief Deputy Attorney General

cc: Joseph Handlon Deputy Attorney General Dorey Cole, Deputy Attorney General

13
Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923, at 3 (Del. Super. Jun. 7, 2022) (“The Court finds that the generalized statements in the Affidavit do not meet ‘the burden to create a record from which the Superior Court can determine whether the University performed an adequate search for responsive documents.’”). 14 Vanella v. Duran, 2024 WL 5201305, at 9 (Del. Super. Dec. 23, 2024).

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