Can a journalist get use-of-force data, prison reports, and video-retention policies from the Delaware Department of Correction under FOIA?

Plain-English summary

Xerxes Wilson, then a reporter at Delaware Online / The News Journal, was investigating excessive force inside Delaware's Level 5 (maximum security) prisons. He filed two FOIA requests with the Department of Correction (DOC) on February 24, 2022.

The first asked for use-of-force data tracked in the Delaware Automated Correctional System since January 2015 (broken down by type, location, and employee), plus any Bureau of Prisons or Office of the Commissioner reports on use of force in Level 5 facilities since January 2017. DOC denied the request entirely, citing 11 Del. C. § 4322 (case-records privilege) and the investigatory-files exemption.

The second asked for any policies governing the retention of prison video footage and policies governing employee access to that footage. DOC said no responsive documents existed.

Wilson filed two petitions with the AG on March 28, 2022.

On the first petition, the AG worked through DOC's three defenses:

1. 11 Del. C. § 4322 (case-records privilege). Rejected. Section 4322 protects "supervision history and all other case records" of inmates. Op. 19-IB26 had applied it to inmate-specific data (names, booking dates, charges). But Wilson's request was for use-of-force data by type, location, and employee, not by inmate. DOC failed to explain how that data was within an inmate's case record. Burden not met.
2. Investigatory files exemption (§ 10002(o)(3)). Rejected. DOC's bare assertion that the reports "implicate" investigations at "micro and macro levels" was too thin. The exemption is broad but the agency still has to show why. Burden not met.
3. Pending litigation exemption (§ 10002(o)(9)). Accepted. Davis v. Neal, a federal lawsuit against DOC employees alleging excessive force, was pending. The ACLU of Delaware (counsel for the plaintiffs) had publicly cited Wilson's reporting in connection with the case. The AG applied its two-prong test (Op. 21-IB02): (1) is litigation pending? Yes. (2) Do the records pertain to it? Yes. Use-of-force data and reports "clearly pertain" to a pending lawsuit alleging excessive use of force. Records exempt.

The AG also noted (with the now-familiar "respectfully caution" language) that DOC raised the pending-litigation defense for the first time at the petition stage rather than in the original denial.

On the second petition, DOC produced one 2017 directive about retaining handheld video for 180 days and a sworn affidavit from the Chief of the Bureau of Prisons attesting that no other policies existed. The AG accepted the sworn statement and found no FOIA violation.

What this means for you

If you are a journalist or researcher investigating Delaware prisons

The opinion holds that DOC could withhold the use-of-force data and reports under the pending-litigation exemption, § 10002(o)(9), because a federal lawsuit against DOC employees (Davis v. Neal) was pending and the requested records "clearly pertain" to it. The exemption applies to records "pertaining to pending or potential litigation which are not records of any court," and the opinion applies a two-prong test: litigation must be pending, and the records must pertain to it. It does not address how long the exemption lasts once a case ends.

The opinion also rejects two of DOC's defenses. It holds that the case-records privilege at 11 Del. C. § 4322 did not apply because DOC never explained how data broken down "by type, location and employee," without inmate identifiers, would be contained in an inmate's case record. And it holds that DOC's bare assertion that the reports "implicate" investigations "at both the micro and macro levels" did not carry DOC's burden under the investigatory-files exemption.

If you are a civil rights or prison-conditions attorney

The opinion settles the two-prong § 10002(o)(9) analysis: a denial under that exemption stands or falls on whether litigation is pending and whether the specific records sought pertain to it. Here the nexus prong was met in part because the ACLU of Delaware, counsel for the plaintiffs in Davis v. Neal, issued a press release tying the suit to Wilson's reporting on excessive force.

If you are a corrections FOIA coordinator

Two holdings bear on how denials are written. The case-records and investigatory-files defenses failed because DOC asserted them without connecting specific records to the privilege or to specific investigations; the opinion holds DOC did not meet its burden of proof under § 10005(c). And the opinion notes that DOC raised the pending-litigation exemption "for the first time in its Response to your Petition," and "respectfully caution[s] DOC to give due consideration to the reasons asserted in any future denials." On the second request, DOC prevailed because it produced a sworn affidavit from its Chief of the Bureau of Prisons attesting that no further responsive documents existed, and the opinion holds FOIA does not require a body to produce records that do not exist.

Common questions

Q: What is the pending-litigation exemption test in Delaware FOIA?
A: A two-prong test from Op. 21-IB02 (Jan. 21, 2021): (1) litigation must actually be pending, and (2) the records the requester seeks must pertain to that litigation. The AG limits the exemption to that test and does not require additional showings of harm.

Q: Does the exemption apply to merely 'potential' litigation?
A: Section 10002(o)(9) by its terms covers records "pertaining to pending or potential litigation." This opinion involved a lawsuit that was already pending (Davis v. Neal), so the AG applied only the pending-litigation prongs and did not address what a "potential" litigation showing would require.

Q: Once the lawsuit ends, do the records become available?
A: The opinion does not say. It decides only that, while Davis v. Neal was pending, the use-of-force data and reports were exempt under § 10002(o)(9). It does not address whether or when the records become accessible after the case concludes, and other exemptions could still be raised.

Q: What does 11 Del. C. § 4322 protect?
A: Section 4322(a) privileges "supervision history and all other case records obtained in the discharge of official duty by any member or employee of [DOC]." The opinion holds the privilege did not reach data broken down by type, location, and employee because DOC failed to explain how that data would be contained in an inmate's case record.

Q: Why did the AG accept that no other video-retention policy exists?
A: DOC produced a sworn affidavit from its Chief of the Bureau of Prisons attesting, based on personal knowledge of DOC and Bureau of Prisons policies, that no further responsive documents existed. The opinion holds FOIA does not require a public body to provide records that do not exist and accepts the sworn statement on this record.

Q: What is the caution to DOC about late-introduced defenses?
A: The opinion notes that DOC asserted the pending-litigation exemption "for the first time in its Response to your Petition," and the AG "respectfully caution[s] DOC to give due consideration to the reasons asserted in any future denials," that is, to state its grounds in the original denial rather than raise them only after a petition is filed.

Background and statutory framework

Delaware FOIA's exemption structure is in 29 Del. C. § 10002. Three exemptions intersected here:

• § 10002(o)(3) for "investigatory files compiled for civil or criminal law-enforcement purposes."
• § 10002(o)(6) for records "specifically exempted from public disclosure by statute or common law" (the gateway for § 4322).
• § 10002(o)(9) for records "pertaining to pending or potential litigation which are not records of any court."

The third exemption is the most fact-sensitive. The opinion limits the analysis to a two-prong test, drawn from Op. 21-IB02 and 21-IB20: whether litigation is pending, and whether the records sought pertain to it. Here both prongs were met, and the opinion notes the second prong was supported by the ACLU's public statement tying Davis v. Neal to Wilson's reporting.

The case-records privilege at 11 Del. C. § 4322(a) prohibits the disclosure, directly or indirectly, of "supervision history and all other case records obtained in the discharge of official duty by any member or employee of [DOC]." The opinion contrasts two prior determinations: Op. 19-IB26 found a request for inmate names, booking dates, charges, bond amounts, and dates of birth fell within the privilege, while Op. 13-IB07 found the privilege did not cover DOC's communications with lethal-injection drug suppliers. The opinion places this request on the latter side, because DOC did not show how data on use-of-force incidents by type, location, and employee would be contained in an inmate's case record.

The investigatory-files exemption, § 10002(o)(3), has been "broadly and properly interpreted to apply to a wide variety of criminal and civil investigative files" (Op. 21-IB19, 17-IB21). But the opinion holds the agency still bears the burden of justification, and DOC's statement that the reports "implicate" investigations "at both the micro and macro levels" did not connect specific records to specific investigations.

The Davis v. Neal lawsuit (C.A. No. 21-1773-MN, D. Del.) is the predicate for the pending-litigation finding. The ACLU of Delaware represented the plaintiffs; the press release accompanying the suit cited Wilson's reporting on excessive use of force. That public connection sealed the second prong of the AG's test. When pending litigation is publicly tied to the same subject matter as a FOIA request, the nexus is rarely defensible.

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions, FOIA exemptions)
• 29 Del. C. § 10003 (Public records access)
• 29 Del. C. § 10005 (Enforcement)
• 11 Del. C. § 4322 (DOC case records)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Davis v. Neal, C.A. No. 21-1773-MN (D. Del.) (federal use-of-force lawsuit)

Prior AG opinions:

• Del. Op. Att'y Gen. 21-IB02 (Jan. 21, 2021) (two-prong pending-litigation test)
• Del. Op. Att'y Gen. 21-IB20 (Sept. 14, 2021) (pending-litigation application)
• Del. Op. Att'y Gen. 19-IB26 (May 28, 2019) (§ 4322 covers inmate-tied data)
• Del. Op. Att'y Gen. 13-IB07 (Nov. 21, 2013) (§ 4322 does not cover supplier communications)
• Del. Op. Att'y Gen. 21-IB19 (Aug. 18, 2021); 17-IB21 (July 13, 2017) (broad investigatory exemption)
• Del. Op. Att'y Gen. 19-IB49 (Sept. 9, 2019); 06-IB10 (May 4, 2006); 05-IB19 (Aug. 1, 2005); 96-IB28 (Aug. 8, 1996) (no requirement to produce non-existent records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/29/22-ib16-04-29-2022-foia-opinion-letter-to-xerxes-wilson-re-foia-complaint-concerning-the-delaware-department-of-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/05/Attorney-General-Opinion-No.-22-IB16.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB16

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB16

April 29, 2022

VIA EMAIL

Xerxes Wilson

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Correction

Dear Mr. Wilson:

We write in response to your correspondence alleging that the Delaware Department of Correction ("DOC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence dated March 28, 2022, 1:15 pm ("First Petition") and March 28, 2022, 1:14 pm ("Second Petition") as petitions for determinations pursuant to 29 Del. C. § 10005 regarding whether violations of FOIA have occurred or are about to occur in connection with your requests. As discussed more fully herein, we determine that DOC did not violate FOIA as alleged in your petitions.

BACKGROUND

On February 24, 2022, you submitted a FOIA request to DOC asking to "review data that tracks use of force incidents by type, location and employee since Jan. 1, 2015" contained within the Delaware Automated Correctional System. [1] You also requested access to "any reports generated by the Bureau of Prisons or the Office of the Commissioner relating to use of force in Delaware's Level 5 facilities since Jan. 1, 2017." [2] DOC denied your request in its entirety citing to FOIA's exemptions to the definition of public record for: 1) records specifically exempted by statute, in this case 11 Del. C. § 4322; and 2) investigatory files.

That same day, you submitted a second FOIA request to DOC asking for "[a]ny procedures, directives or policy that govern the retention of video footage inside Delaware's Level 5 facilities;" and "[a]ny procedures, directives or policy that governs employee access to video surveillance footage inside Delaware's Level 5 facilities." [3] DOC responded that it had no responsive documents.

On March 28, 2022, you filed the First Petition addressing your first FOIA request to DOC made in February 2022. In the First Petition, you allege that 11 Del. C. § 4322 was inapplicable to your data request because that specific section deals with "Probation and Parole Services," and because you did not ask for the names of offenders, you argue "the data cannot be construed to be an [offender's] 'supervision history' or a case record" [4] and to the extent the records you request are an offender's supervision history or case record, as contemplated by Section 4322, specific offender names may be redacted and the records provided to you despite the language of Section 4322. You also argue that the investigatory exemption is inapplicable because you "don't believe a dataset derived from paperwork that the department requires its officers to submit upon using force can be construed as an investigatory file." [5] Further, you believe the data "marks an occurrence and makes no findings as to whether the use of force was justified or should result in departmental or criminal sanction for either the officer or offender." [6] Finally, if the requested reports do contain closed investigations, then you argue it is in the public interest to disclose the reports.

DOC responded to the First Petition by asserting that the requested records are exempt from disclosure under 11 Del. C. § 4322(a) which provides that "all . . . case records obtained in the discharge of official duty by any member or employee of the Department shall be privileged." And further, that while data may not be contemplated in the term "investigatory file," the reports "generated by the Bureau of Prisons of the Office of the Commissioner do implicate the DOC's own investigations into use of force at both the micro and macro levels and therefore satisfy 29 Del. C. § 10002(o)(3)." [7] Finally, DOC asserts that these records are exempt under 29 Del. C. § 10002(o)(9) as "records pertaining to pending or potential litigation" because the records you requested are the subject of a pending lawsuit involving DOC employees. [8]

Also on March 28, 2022, you filed the Second Petition addressing your second FOIA request to DOC. In the Second Petition, you argue that "[you] find it hard to believe that no documents exist governing the use of and access to video footage captured within the state's prisons." [9] DOC responded to your Second Petition, attaching an executed affidavit from DOC's Chief of its Bureau of Prisons, Shane Troxler. Chief Troxler identified a directive dated August 8, 2017 from former Bureau Chief Steve Wesley requiring the retention of video from handheld cameras during planned use of force incidents for a period of 180 days. DOC attached a copy of this directive with its response to the Second Petition. Chief Troxler further attested that he was familiar with the policies of DOC and the Bureau of Prisons and there are no additional responsive documents.

DISCUSSION

FOIA mandates that a public body provide citizens with reasonable access to public records for inspection and copying, but certain records and information are excluded from the definition of "public record." [10] If a public body denies a FOIA request, the public body carries the burden of proof to justify the denial of access to its records. [11] In certain circumstances, a sworn affidavit may be required to meet that burden. [12]

The First Petition

First, DOC argues that the data and reports you requested are statutorily exempt from disclosure. FOIA excludes from the definition of public record documents that are exempt from public disclosure by statute or common law. [13] 11 Del. C. § 4322(a) prohibits the disclosure both directly and indirectly of "supervision history and all other case records obtained in the discharge of official duty by any member or employee of [DOC]." DOC argues that the data requested is part of inmates' supervision history. We have found that a data request for inmate names, booking dates, charges, bond amounts, dates of birth, and other items was exempt from disclosure under 11 Del. C. § 4322 as a case record or supervision history. [14] Conversely, we have found that 11 Del. C. § 4322(a) does not cover DOC's communications with lethal injection drug suppliers. [15] DOC has failed to explain how the requested data regarding "use of force incidents by type, location and employee" would be contained in an inmate's case record, and therefore, we determine that DOC failed to meet its burden with regard to this exception.

Second, DOC argues that reports generated by the Bureau of Prisons of the Office of the Commissioner on use of force are exempt under FOIA's exemption for investigatory files stating only that the reports implicate investigations on both the micro and macro levels. FOIA excludes from the definition of public record "investigatory files compiled for civil or criminal law-enforcement purposes." [16] The investigatory files exemption "has been broadly and properly interpreted to apply to a wide variety of criminal and civil investigative files." [17] DOC argues that the requested reports implicate "DOC's own investigations into use of force at both the micro and macro levels." [18] It is DOC's burden to justify the denial of documents, and we find on this record, that DOC has not met its burden in justifying the denial of documents under the investigatory files exemption.

Finally, DOC argues that the records you seek pertain to pending litigation which are exempt from the definition of "public record." [19] To determine if this exemption applies, we must consider the following two factors: 1) whether litigation is pending; and 2) whether the records that the requesting party seeks pertain to that pending litigation. [20] DOC's counsel represents that a lawsuit is pending in federal district court against various DOC employees ( Davis v. Neal , C.A. No. 21-1773-MN (D. Del.)) and cites to the press release that the ACLU of Delaware, which represents the plaintiffs in the suit, issued referring to your reporting on the issue of excessive use of force and abuse in Delaware's prisons in conjunction with the lawsuit. Based on this record, we find that this first prong is met. For the second prong, we must determine whether the requested records pertain to this litigation. These requests for data on the use of force and reports on the use of force generated by the Bureau of Prisons or the Office of the Commissioner in Delaware's Level 5 facilities clearly pertain to the pending litigation described herein. Based on the foregoing, we determine that the requested records are exempt under 29 Del. C. § 10002(o)(9).

We note that DOC asserted the pending litigation exemption for the first time in its Response to your Petition, and we respectfully caution DOC to give due consideration to the reasons asserted in any future denials.

The Second Petition

The Second Petition involved your second FOIA request seeking documents governing the use of and access to video footage captured within the prison system. DOC responded to your Second Petition, providing you with a directive dated August 8, 2017, and an affidavit from its Chief of the Bureau of Prisons, attesting that there are no further responsive documents. FOIA does not require a public body to provide records which do not exist. [21] This Office accepts DOC's sworn statement that no additional responsive documents exist and therefore on this record, we find that DOC has not violated FOIA in relation to your Second Petition.

CONCLUSION

For the reasons set forth above, we conclude that DOC did not violate FOIA in relation to either the First or the Second Petition.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler

Chief Deputy Attorney General

cc: Gregory E. Smith, Deputy Attorney General

[1] First Petition.

[2] Id.

[3] Second Petition.

[4] First Petition.

[5] Id.

[6] Id.

[7] Response to First Petition.

[8] See, e.g., Davis v. Neal , C.A. No. 21-1773-MN (D. Del.).

[9] Second Petition.

[10] 29 Del. C. §§ 10002, 10003(a).

[11] 29 Del. C. § 10005(c).

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

[13] 29 Del. C. § 10002(o)(6).

[14] Del. Op. Att'y Gen. 19-IB26, 2019 WL 4538312, at *2 (May 28, 2019).

[15] Del. Op. Att'y Gen. 13-IB07, 2013 WL 6593038, at *2 (Nov. 21, 2013).

[16] 29 Del. C. § 10002(o)(3).

[17] Del. Op. Att'y Gen. 21-IB19, 2021 WL 4202795, at 2 (Aug. 18, 2021); s ee also Del. Op. Att'y Gen. 17-IB21, 2017 WL 3426261, at 1 (July 13, 2017).

[18] Response to First Petition.

[19] 29 Del. C. § 10002(o)(9).

[20] Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557, at 2 (Jan. 21, 2021) ("[W]e believe that the application of this exemption should be limited to determining whether litigation is pending and whether the records that the requesting party seeks pertain to that pending litigation."); see also Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857, at 2-3 (Sept. 14, 2021).

[21] Del. Op. Att'y Gen. 19 – IB49, 2019 WL 5208245, at 3 (Sept. 9, 2019); Del. Op. Att'y Gen. 06-IB10, 2006 WL 1779491, at 2 (May 4, 2006); Del. Op. Att'y Gen. 05-IB19, 2005 WL 2334347, at 5 (Aug. 1, 2005); Del. Op. Att'y Gen. 96-IB28, 1996 WL 517455, at 2 (Aug. 8, 1996).