Must a Delaware prison hand over its own cumulative summary reports on contraband seizures under FOIA, even if individual incident reports are exempt?

Official title

17-IB40 08/23/2017 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Department of Correction

Plain-English summary

Associated Press reporter Randall Chase asked the Delaware Department of Correction (DOC) for a wide range of records about James T. Vaughn Correctional Center (JTVCC), including exceptional incident reports, use-of-force reports, inmate grievances, disciplinary records, and the types and amounts of contraband seized since various dates. DOC denied the request, and in an earlier opinion (17-IB25) the AG had already found that everything Chase asked for was exempt from FOIA's public-records definition, except that summary or cumulative documents about contraband amounts, if DOC had generated any, might not share that exemption.

Chase pressed the point, noting a Delaware State News article describing DOC-provided contraband statistics, and DOC eventually admitted it had in fact created two such summary documents (one covering May 2015 to April 2016, previously shared with a reporter, and one covering fiscal year 2017), which it then produced to Chase along with an apology for its FOIA coordinator's earlier mistaken belief that no summaries existed. The AG determined DOC violated FOIA by not producing those summary documents in the first place, but did not violate FOIA by withholding the underlying individual incident reports, which remain exempt as investigatory files. Because Chase had since received everything he was entitled to, the AG closed the matter.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Are prison incident reports and grievances public records in Delaware?

Under this opinion, generally no. The AG found that exceptional incident reports, use-of-force reports, inmate grievances, and staff disciplinary records at JTVCC were exempt from FOIA's "public record" definition, largely as investigatory files compiled for law-enforcement purposes under 29 Del. C. § 10002(1)(3), or as records otherwise exempted by statute or common law.

If the underlying records are exempt, can an agency still be required to disclose a summary it made from them?

Yes, according to this opinion. The AG's earlier opinion flagged that cumulative summary documents about contraband seizures, if DOC had created any, might not carry the same exemption as the individual reports feeding into them. Once DOC confirmed such summaries existed, the AG found withholding them was a FOIA violation.

Why didn't the AG order further action here?

Because DOC ultimately produced both summary documents to the requester along with an explanation and apology, mooting the need for additional remediation.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005 when a public body denies a records request. Several categories of records are excluded from FOIA's "public record" definition under 29 Del. C. § 10002(1), including investigatory files compiled for civil or criminal law-enforcement purposes (§ 10002(1)(3)), records exempted by other statute or common law (§ 10002(1)(6), here potentially overlapping with 11 Del. C. § 4322(a) governing DOC records), and records related to pending or potential litigation (§ 10002(1)(9)). This opinion illustrates how those exemptions apply differently to raw incident-level records versus an agency's own aggregated summary of the same underlying data.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(1)(3) (investigatory files exemption)
• 29 Del. C. § 10002(1)(6) (records exempted by other statute or common law)
• 29 Del. C. § 10002(1)(9) (records related to pending or potential litigation)
• 11 Del. C. § 4322(a) (cited as a possible statutory basis for exemption of DOC records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/23/17-ib40-08232017-foia-opinion-letter-mr-randall-chase-re-foia-complaint-concerning-department-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/Attorney-General-Opinion-No.-17-IB40.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB40

August 23, 2017

VIA EMAIL

Randall Chase
[email protected]

RE: August 10,2017 FOIA Petition Regarding the Delaware Department of
Correction

Dear Mr. Chase:

I write in response to your correspondence, received on August 10, 2017, alleging that the

Delaware Department of Correction (the “DOC”) violated the public records provisions of

Delaware’s Freedom of Information Act, 29 Del. C. §§10001-10007 (“FOIA”).

I 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 (“Petition”). Based upon the record, it is my
determination that DOC violated FOIA by failing to provide you with summary documents
containing cumulative information regarding contraband seizures. However, as DOC has since
provided the information, your petition is now moot and no further remediation is warranted.

On February 23, 2017, you requested the following information from the DOC:

all ‘exceptional incident’ reports filed by staff at James T. Vaughn
Correctional Center since Jan. 1, 2014. All use-of-force incident
reports filed at JTVCC since Jan. 1, 2014. All grievances filed by
inmates at JTVCC since Jan. 1, 2014, including those deemed by
DOC to be ‘non-grievable.’ All grievances and complaints filed
against correctional officer Steven R. Floyd since Jan. 1, 2007.
Records of all disciplinary actions, of any kind, taken against
JTVCC staff members since Jan. 1, 2012. Records of all Rule 210
reports and proceedings at JTVCC since Jan. 1, 2014. Records of
the types and amounts of all contraband seized at JTVCC since Jan.
1, 2014.

The DOC denied your request on the grounds that they were exempted from the statutory definition
of “public records.”

On May 10, 2017, you submitted a petition with this Office pursuant to 29 Del. C. § 10005
challenging the DOC’s denial of your request. In Del. Op. Att’y Gen. 17-IB25,' I concluded:

With the exception of your request for “[rJecords of the types and
amounts of all contraband seized at JTVCC since Jan. 1, 2014,” all
of the records that you requested would be exempt from the
definition of “public record,” either because they would constitute
“a personnel, medical or pupil file, the disclosure of which would
constitute an invasion of personal privacy....”, “[i]nvestigatory files
compiled for civil or criminal law-enforcement purposes including
pending investigative files”, “records specifically exempted from
public disclosure by statute or common law”, to include 11 Del. C.
§ 4322(a), or “records pertaining to pending or potential litigation

which are not records of any court.”

Some “[rJecords of the types and amounts of all contraband
seized at JTVCC since Jan. 1, 2014” may also constitute non-public
records under the previously cited FOIA exemptions. However, if
DOC has previously generated summary documents containing this
cumulative information, those documents might not be subject to
said exemptions.”

I recommended that DOC respond more precisely to your request for records relating to contraband
seizures within 20 business days of my determination and noted that you reserved the right to
submit a new petition upon receipt of the DOC’s response. On August 4, 2017, the DOC’s FOIA
Coordinator informed you that “[t]he DOC has not generated summary documents that cumulate
the contraband seized at the JTVCC since January 1, 2014.°

In your Petition, you stated:

[I]f the DOC maintains that it does not generate summary
documents regarding the seizure of contraband, I would ask that the
DOC explain the following excerpt from the June 2, 2016 edition of
the Delaware State News:

| 2017 WL 3426265 (July 17, 2017).
2 Id. at *2 (citations omitted).

a Email from K. Bennett to R. Chase dated August 4, 2017.

“From May 2015 to April 2016, the DOC said, JTVCC has had 80

contraband incidents involving drugs; the numbers peaked with 10
in October 2015, followed by 16 the next month. The number of
incidents has dropped significantly since then, highlighted by three
in March and one in April."

In its August 17, 2017 response to your Petition (the “Response Letter”), the DOC stated:

The DOC first created a summary of contraband events involving
drugs for the period of May 2015 to April 2016. By an e-mail dated
June 1, 2016, the DOC provided the summary in chart format to a
reporter with the Delaware State News. The second summary
document responsive to the FOIA request aggregates all types of
contraband for the fiscal year 2017 (a period from July 2016 to June
2017). The DOC did not create such documents prior to that time
frame. In order to create these summaries, the DOC manually
reviewed individual incident reports. DOC policies did not require
the compilation of these summaries in the past, and those policies
do not require creation of similar documents in the future.°

The DOC’s response included copies of those documents, an apology, and an explanation that its
“FOIA coordinator believed in good faith that summary reports did not exist.”° The DOC
maintains — and we agree — that specific reports from which the data was compiled are not public
records.

Under the circumstances, it is my determination that the DOC violated FOIA by failing to
provide summary documents containing this cumulative information regarding contraband
seizures at JTVCC since January 1, 2014. The DOC did not violate FOIA by failing to provide
individual reports, as those records are exempted from FOIA’s definition of “public record”
pursuant to 29 Del. C. § 10002(1)(3), which exempts “[i]nvestigatory files compiled for civil or
criminal law-enforcement purposes... .”’ As you have since received all public records
responsive to your February 23, 2017 request, this matter is now closed.

4 Petition at JJ 5-6.

Response Letter at 1.

° Id.

y Having determined that the records are exempted pursuant to Section 10002(1)(3), I need

not determine whether the records are also exempted pursuant to 29 Del. C. § 10002(1)(6), and
more specifically, 11 Del. C. § 4322(a), as the DOC maintains, or 29 Del. C. § 10002(1)(9).

3

Very truly yours,

LaKresha S. Roberts

Chief Deputy Attorney General

cc: Michelle E. Whalen, Deputy Attorney General (via email)
Gregory Smith, Deputy Attorney General (via email)