In a victory for government transparency in Delaware, the state’s Supreme Court ruled earlier this week that law enforcement agencies may not deny Freedom of Information Act requests without proof, including sworn testimony, that the files requested do not exist or are exempt under state law.
The decision resolves a complaint brought by Delaware Call editor Robert E. Vanella, who back in October 2023 asked the state police for seven categories of records about certified law enforcement officers, including a list of current and former officers, ranks, salaries, past employers, résumés, and anonymized demographic information, including the age, sex and race of each trooper. The state police denied the request in its entirety, citing FOIA exemptions for personnel files, public safety, or that the files do not exist. Represented by ACLU Delaware, the Call scored a partial victory in Superior Court last year, so the state police appealed to the Delaware Supreme Court, where they lost yet again.
“This decision strengthens public access to information in Delaware,” ACLU staff attorney Jared Silberglied said in a press release. “The Supreme Court’s decision ensures that law enforcement have a duty to provide basic information about their operations to the public and cannot hide behind a series of narrow exceptions to FOIA’s general requirement of transparency.”
Delaware Call requested this information as part of a joint investigation in partnership with Invisible Institute, which tracks “wandering officers” who switch departments only to continue patterns of aggressive behavior toward civilians. Having access to basic demographic information and employment histories helps citizens to more easily discover which officers may be “bad apples,” so to speak, and are therefore more likely to abuse their authority in the future. Invisible Institute maintains a public database called the National Police Index that allows residents of 24 states to look up the employment history of officers in that state. Delaware is not yet one of them.
Writing for the majority, Justice N. Christopher Griffiths found the evidence produced by the state police to justify denying the FOIA request was legally inadequate. The agency’s affidavit never described what search it had conducted, and the state police conceded its computer systems held trooper “pedigree information.” Even if some of the information requested was not exempt from release, the state police blocked the release of those records under the spurious logic that if any part of a FOIA request is exempt, then the entire request is denied.
“A record is not exempt in its entirety because a discrete portion of that record is exempt from disclosure,” the opinion states. “A contrary rule would permit a public body to withhold any record containing a single exempt data point.”
Under the ruling handed down by the Court this week, state agencies must explain in a sworn affidavit — under oath — what records were discovered; moreover, agencies may no longer refuse to hand over the records simply because they contain some private information, which can easily be redacted. This is good news for anyone seeking to pry records from Delaware agencies, which can no longer just say “we don’t have that” to deny a FOIA request.
When it comes to demographics, which the Call sought under anonymous identifiers rather than officer names, the Court was blunt.
“Information that cannot be connected to an identifiable individual does not invade that individual’s personal privacy,” the Court wrote, adding that pulling existing data from a database is not the same as creating a new record.
Although the Court ruled in favor of the Call and ordered the state police to produce documents, the majority held that we were not entitled to be reimbursed for attorney fees, also known as “fee-shifting.” If a local municipality or school district denies a FOIA request, you can sue and a judge can make them cover your legal bills if you win. But when it comes to state agencies, FOIA appeals go through the attorney general’s office first, and then Superior Court. The majority held the state’s fee provision applies to “plaintiffs” only, and not “appellants,” which means a state agency can deny an open records request for reasons that are legally baseless — as happened here — and still walk away owing the requester nothing.
In their dissent on the question of attorney fees, Chief Justice Collins Seitz and Justice Gary Traynor are critical of the majority’s narrow distinction between “plaintiff” and “appellant,” noting they do not offer “a policy justification for treating citizen-litigants who arrive in the Superior Court by way of a lawsuit differently than those who are before the court as appellants in an on-the-record appeal.”
Seitz and Traynor suggest that “plaintiff,” as used in Delaware’s FOIA law, broadly applies to “a citizen who litigates under the FOIA statute to secure records.”
Nevertheless, as Vanella said to the ACLU, “This is a victory for press freedom and public transparency. For far too long, the police refused to share the most basic information publicly based on dubious legal reasoning. With the help of ACLU-DE, we’ve demonstrated our right to this information. Rest assured, we will be demanding even more of it.”