If a Delaware agency keeps expungement statistics in a database and the requester knows the data exists (because the same agency reported it to the Governor's Office), can the agency say the data is 'not finalized' and refuse to produce it?
Plain-English summary
Meryem Dede, an attorney with Tides Shift Justice, asked the Delaware State Police for three pieces of data: how many records DSP had expunged through the mandatory or automatic process for two date ranges in late 2024 and 2025, how many through any expungement process, and how much the State Bureau of Identification had collected in mandatory-expungement fees under 11 Del. C. § 4373(e). DSP responded with the 2024 statistics from a published annual report, said it would update with 2025 data later, and noted it is not required to "create" records that do not exist.
While waiting, Dede separately asked the Governor's Office and received January-October 2025 expungement data. So she filed a petition arguing that DSP clearly had the data; the Governor's Office had it.
DSP's lawyer responded that the data Dede received from the Governor's Office was "perhaps preliminary in nature" and that DSP did not have "finalized" responsive records. The AG was unimpressed. Producing data from a computer system is not the same as creating a new record (citing the 2024 Superior Court Vanella v. Duran decision). And DSP submitted no sworn statement explaining its search or its claim that it lacks "finalized" data. Without a sworn affidavit, DSP could not meet its burden of proof. The AG found a FOIA violation and required DSP to supplement with sworn statements.
What this means for you
If you are a Delaware agency holding statistical or transactional data
The opinion holds that producing "easily disclosable information stored in a computer system" does not require the creation of a new record (citing Vanella v. Duran, Del. Super. 2024), so a "not finalized for the annual report yet" position does not by itself excuse production of data the agency already holds. It also holds that a public body relying on such a position must support it with sworn statements; because DSP submitted none, it failed to meet its burden under § 10005(c) and Judicial Watch.
If you are a clean-slate or criminal-justice advocate seeking expungement data
The opinion holds that an agency's claim it lacks "finalized" data does not, without a sworn statement, justify withholding statistics the agency maintains. It treats the data the requester obtained from the Governor's Office as cutting against DSP's claim that it could not produce the figures, and finds DSP violated FOIA by not demonstrating through sworn statements that the denial was appropriate.
If you are a journalist building a data set on Delaware criminal justice
The opinion holds that database statistics are existing records, not new records the agency must create, and that "the data is preliminary" did not, on this record, justify the denial. The expungement data at issue is held by the State Bureau of Identification within DSP, covering mandatory and automatic expungements under 11 Del. C. § 4373 and the SBI's fee collections under § 4373(e).
If you are a Delaware government attorney advising on FOIA responses
The opinion holds that unsworn correspondence from counsel does not meet the public body's burden when the adequacy of a search or the existence of records is challenged. It applies Judicial Watch and the Superior Court's 2022 decision: the sworn statement must describe the efforts taken to find responsive records and the results, with enough specificity to be reviewable.
Common questions
Q: Why is "creating a new record" a FOIA escape hatch sometimes but not here?
A: FOIA requires production of existing records, not the creation of new ones. Vanella v. Duran (Del. Super. 2024) clarified the line: a true new record is one fabricated to answer a FOIA question. An extract of existing database data is not a "new record" because the underlying data already exists; the extraction is simply a method of access.
Q: How do I know if data lives in a database in extractable form?
A: For most state agencies, yes. Agencies use case management systems, financial systems, and statistical reporting tools that produce reports and extracts as a matter of routine. The agency that compiles annual reports has the data internally year-round; "wait for the annual report" is rarely a strong defense.
Q: What if I asked for "the report" rather than "the data"?
A: That changes the analysis. If you specifically asked for a published report (or annual report), and the report has not yet been published, the agency can legitimately say the report does not exist yet. To avoid that ambiguity, frame requests as data: "extract from the SBI database showing the count of mandatory and automatic expungements between [date] and [date]."
Q: Why did the AG focus on the Governor's Office data?
A: Because it cut against DSP's claim that the data did not exist. If the executive office had received the data, then the data existed somewhere, and DSP's response that it could not produce the data lacked credibility. The AG didn't necessarily say DSP must produce the exact same numbers the Governor's Office used (preliminary or not), but DSP could not refuse to engage with the request without a real explanation.
Q: What does the agency have to do now?
A: Supplement its response with sworn statements describing the search it conducted and any responsive data it has. If it has data, it must produce it. If it does not, the affidavit must explain why and what limitations apply.
Background and statutory framework
Delaware's clean-slate framework lives in 11 Del. C. § 4373. Mandatory expungements are required for certain qualifying offenses; automatic expungements are run by the SBI according to the statutory framework. The SBI is authorized under § 4373(e) to "promulgate reasonable regulations and a reasonable fee schedule to accomplish the purposes of this section."
Tracking mandatory and automatic expungement counts and SBI fee collections is the kind of operational data the SBI maintains in its computer system. The Governor's Office, the legislature, and the public have legitimate interests in monitoring this data. The DSP's annual report includes some statistics, but the report cycle lags real-time data by months.
This opinion fits into the broader Delaware FOIA framework:
- Burden of proof. § 10005(c) and Judicial Watch require sworn statements when burden is contested.
- Easily disclosable data. Vanella v. Duran (Del. Super. 2024): producing easily disclosable information stored in a computer system is not creating a new record.
- No required answers to questions. FOIA produces records, not explanations. But here Dede's request was for specific data, not for explanations, so the rule did not save DSP.
- Generic affidavits insufficient. Judicial Watch v. Univ. of Del. (Del. Super. 2022) rejected affidavits that say only that "counsel inquired about issues."
Citations and references
Statutes:
- 29 Del. C. § 10003
- 29 Del. C. § 10005
- 11 Del. C. § 4373 (mandatory expungement)
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. Jun. 7, 2022)
- Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024) (database extracts are not new records)
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
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. 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:
-
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. -
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. -
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.
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." 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." 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."
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. 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)."
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." 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.
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." "[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." Generalized assertions in the affidavit will not meet the burden. 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." 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