ACLU v. Martin

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMERICAN CIVIL LIBERTIES )
UNION OF DELAWARE, )
)
Appellant, ) C.A. No. K25A-01-001 RLG
)
v. )
)
TIM MARTIN, in his official )
capacity as FOIA Coordinator for )
the DELAWARE DEPARTMENT )
OF CORRECTIONS, 1 )
)
Appellee. )

Submitted: December 30, 2025
Decided: May 18, 2026

MEMORANDUM OPINION

Upon Appeal of Chief Deputy Attorney General
Opinions No. 24-IB50 and 24-IB52 – REVERSED in part.

Andrew Bernstein, Esquire (argued) and Dwane Bensing, Esquire, American Civil
Liberties Union of Delaware, Wilmington, Delaware. Attorneys for Appellant.

Michael Gordon, Esquire (argued), and Abigail de Uriarte, Esquire, Department of
Justice, Wilmington, Delaware. Attorneys for Appellee.

GREEN-STREETT, J.

1
This litigation was instituted against Tim Martin, in his official capacity as FOIA Coordinator for
The Delaware Department of Corrections. The Court is aware that the proper name is the Delaware
Department of Correction.
1
I. Introduction

An organization submitted two requests for information from a State agency

under Delaware’s Freedom of Information Act. The State agency denied those

requests, positing the agency did not maintain such records and any related records

it did maintain were exempt from disclosure. The Attorney General’s office upheld

those denials, prompting the requesting organization to file this appeal. As the

agency incorrectly withheld public information under Delaware’s Freedom of

Information Act, the agency’s denial of the requests is REVERSED in part.

II. Factual and Procedural Background

A. The “Eligible Voter Request”

The American Civil Liberties Union of Delaware (“ACLU”) endeavors to

assist “incarcerated people in accessing their civil rights,” including the right of

incarcerated people to vote in elections. 2 To that end, ACLU filed two requests for

information from the Delaware Department of Correction (“DOC”) under 29 Del.

C. §§ 10001-10008, Delaware’s Freedom of Information Act (“FOIA”). 3 The first

request (the “Eligible Voter Request”) sought the number of people incarcerated: 1)

with a lead charge of a misdemeanor, or 2) on pre-trial detention. 4 For individuals

2
Opening Br. at 1.
3
Id.
4
Id. at 5.

2
with those designations, ACLU also requested their name, State Bureau of

Identification (“SBI”) number, and initial date of incarceration. 5 ACLU desired that

information to facilitate contacting those incarcerated individuals who might be

eligible to vote.6

DOC denied the Eligible Voter Request, citing an exemption under FOIA that

applies to “any records pertaining to pending or potential litigation which are not

records of any court.” 7 The “pending or potential litigation” concerning DOC

stemmed from litigation in which ACLU represented the Prisoners Legal Advocacy

Network in a lawsuit against DOC and the Delaware Department of Election

(“DOE”) filed in the United States District Court for the District of Delaware.8 The

District Court dismissed that litigation on August 23, 2024.9 ACLU indicated to

DOC “that it did not intend to appeal the dismissal of the litigation.”10

After issuing its denial, DOC informed ACLU that “[t]he Department of

Correction and the Department of Election are working on the logistics to identify

5
Id.
6
Id. at 6.
7
R. at 6; 29 Del. C. § 10002(o)(9) (hereinafter, the “Litigation Exemption”).
8
Opening Br. at 6.
9
Id.
10
Id. (internal quotations omitted).
3
registered voters within DOC custody without violating confidentiality

requirements.”11 DOE reported, “[b]ased on our review, and work in collaboration

with DOC, we have initially determined that there are currently 990 incarcerated

individuals who are registered to vote.”12 DOE further clarified that all 990 of those

individuals were “eligible to vote in the upcoming General Election.”13

ACLU filed a petition under 29 Del. C. § 10005 to the Attorney General’s

Office seeking a reversal of DOC’s denial of the Eligible Voter Request.14

Responding to ACLU’s petition, DOC reiterated its belief that, because of the recent

litigation between the parties, the requested information fell under the Litigation

Exemption.15 Additionally, DOC argued “it does not keep the requested records in

a manner that would provide accurate information concerning voter eligibility.” 16

DOC further asserted the records were protected under 29 Del. C. § 10002(o)(6),

which exempts “any records specifically exempted from public disclosure by statute

or common law” (the “Statutory Exemption”).17 DOC contended 11 Del. C. §

11
R. at 21.
12
Id. at 17.
13
Id. at 16.
14
Opening Br. at 8.
15
R. at 63-64.
16
Id. at 65.
17
R. at 66.
4
4322(a) and § 8513(d) “prohibit the disclosure of the requested records under these

circumstances.”18

The Office of the Attorney General issued Attorney General Opinion No. 24-

IB50 (the “Eligible Voter Opinion”) on November 26, 2024, finding DOC did not

violate FOIA by denying the Eligible Voter Request.19 The Eligible Voter Opinion

found DOC “met its burden to justify the denial of access to these records” by

attesting “it does not have the requested records.” 20 The attestation referenced by

the Eligible Voter Opinion – an affidavit provided by Jessica Cline, the Deputy Chief

of Planning, Research, and Reentry (the “First Cline Affidavit”) – averred:

I can attest that the current DACS 21 system, while valuable
for many purposes, is not equipped with a designated
search function that could produce the above-requested
information. Past attempts to provide similar information
have necessitated special programming and have often
resulted in inaccurate reports. The way information is
loaded into DACS, whether through human input or
document uploads, combined with the data structure of the
database, does not lend itself to the accurate generation of
the requested information. Therefore, any report
generated would require manual verification for accuracy,

18
Id.
19
Id. at 131.
20
Id. at 133.
21
The First Cline Affidavit identifies DACS as “the DOC’s electronic records database.” See R.
at 125.

5
often by cross-referencing with the criminal records
database of other agencies like DELJIS.22

Notably, the First Cline Affidavit did not address ACLU’s request for the

number of people currently incarcerated on pretrial detention.23 The Eligible Voter

Opinion did not discuss the other exemptions cited by DOC substantively.24

Recognizing that DOC did not assert the records did not exist until ACLU petitioned

the Attorney General, the Eligible Voter Opinion cautioned DOC to “fully assert its

basis for denying the request in its response to the requesting party.”25 The Eligible

Voter Opinion did not discuss a second affidavit provided by DOC – from Shane

Troxler, the Deputy Commissioner – in which Mr. Troxler averred DOC never

informed ACLU it would provide any data related to the Eligible Voter request.26

22
R. at 125.
23
Id. (The First Cline Affidavit recites three of ACLU’s four requests in the Eligible Voter Request.
It omits any reference to pretrial detention.).
24
Id. at 133 (The Eligible Voter Opinion included DOC’s asserted exemptions in its recitation of
DOC’s arguments, but did not address those exemptions in its “Discussion” section or provide
commentary on the validity of those exemptions.).
25
Id.
26
Id. at 129.

6
B. The “Elderly Incarcerated Request”

ACLU’s second FOIA request sought “the number of incarcerated individuals

within certain age ranges above 60” (the “Elderly Incarcerated Request”).27 For each

range, ACLU also requested “the names, SBI numbers, and dates of incarceration

for each individual.”28 DOC provided the number of incarcerated individuals within

each age range as of June 30, 2024, but refused to provide any identifying

information about those individuals.29 In its denial, DOC stated it “does not provide

personal identification information to parties outside of the department.”30

In response to ACLU’s request that DOC provide the specific grounds for its

denial, DOC cited an exception under FOIA for “criminal files and criminal records,

the disclosure of which would constitute an invasion of personal privacy” (the

“Criminal Records Exemption”).31 Additionally, DOC cited the Statutory

27
Opening Br. at 10. The ACLU identified the following age ranges: 76 and older; 71-75; 66-70;
and 61-65. See Opening Br. at 10 n.9.
28
Id.
29
R. at 140-142.
30
Id.
31
Id. at 139; see 29 Del. C. § 10002(o)(4).

7
Exemption.32 DOC asserted disclosure of any identifying information would violate

11 Del. C. § 4322(a); § 8501; and § 8513(d). 33

ACLU again filed a petition with the Attorney General’s Office, asking it to

reverse DOC’s denial. 34 In response, DOC asserted providing the information

sought by the Elderly Incarcerated Request would be “analogous to placing them on

mailing lists,” constituting an invasion of privacy.35 DOC provided a second

affidavit from Ms. Cline (the “Second Cline Affidavit”), wherein Ms. Cline averred:

I can attest that DACS is the Delaware Department of
Correction’s case management database. When an
offender enters DOC custody, DACS populates the
offender’s criminal record by exchanging information
with the courts, the Delaware Criminal Justice Information
System, and the offender’s interview at intake. This
information is validated and exchanged and either
becomes the offender’s criminal record or enhances the
criminal record stored and maintained by the State Bureau
of Identification.36

The Office of the Attorney General issued an opinion finding DOC met its

burden in denying the Elderly Incarcerated Request on December 20, 2024 (the

32
R. at 139; see 29 Del. C. § 10002(o)(6).
33
R. at 139.
34
Opening Br. at 10.
35
R. at 174.
36
Id. at 177.
8
“Elderly Incarcerated Opinion”).37 The Elderly Incarcerated Opinion found DOC

properly withheld the requested information under 29 Del. C. § 10002(o)(6), the

Statutory Exemption.38 The Elderly Incarcerated Opinion further reasoned that 11

Del. C. § 4322(a) prohibited the disclosure of “supervision history and case

records.” 39 The Elderly Incarcerated Opinion also found that, under 11 Del. C. §

8513(d), criminal history information can be disclosed only by the State Bureau of

Investigation. 40 The Elderly Incarcerated Opinion concluded, “inmate names, SBI

numbers, and incarceration dates qualify as identifiable descriptors and information

under the definition of criminal history record information.”41

C. The instant appeal

ACLU filed the instant appeal, seeking reversal of both the Eligible Voter

Opinion and the Elderly Incarcerated Opinion.42 ACLU submitted its Opening Brief

on March 31, 2025. 43 DOC filed its Answering Brief on April 21, 2025.44 ACLU

37
Id. at 181.
38
R. at 182.
39
Id. at 183.
40
Id.
41
Id. at 183-184.
42
Opening Br. at 1.
43
Id.
44
Ans. Br. at 1.
9
filed its Reply on May 2, 2025.45 The Court held oral argument on the matter on

December 3, 2025.46

III. Standard of Review

Under 29 Del. C. § 10005(b), a petitioner wishing to appeal a denial of a FOIA

request by the Office of the Attorney General may appeal that decision to this Court.

An appeal of a FOIA request occurs “on the record.”47 “The burden of proof [rests

with] the custodian of the records to justify the denial of access to records.” 48 When

interpreting a statute such as FOIA, “the most important consideration for a court

[ ] is the language the General Assembly used in writing the statute.”49

IV. Analysis

FOIA appeals proceed through a somewhat unique process. This Court

reviews FOIA decisions “on the record.” As the proceedings below consist of two

FOIA requests, two denials, and two opinions from the Office of the Attorney

45
Reply at 1.
46
Oral Arg. (D.I. 16) (hereinafter, “Tr. at __”).
47
Flowers v. Office of the Governor, 167 A.3d 530, 540 (Del. Super. 2017) (internal quotations
omitted) (quoting 29 Del. C. § 10005(d)).
48
29 Del. C. § 10005(c).
49
Judicial Watch, Inc. v. Univ. of Delaware, 267 A.3d 996, 1004 (Del. 2021) (internal quotations
omitted) (quoting Salzberg v. Sciabacucchi, 227 A.3d 102, 113 (Del. 2020)).

10
General, those proceedings produced a relatively sparse record. 50 That sparse record

requires the Court to grant “significant” deference to DOC’s “representations

regarding whether it possesses relevant records.”51 This Court’s review of FOIA

exemptions, however, “owes no deference” to the opinions from the Office of the

Attorney General.52 “In the FOIA context, the statute’s enumerated exceptions

create a barrier to the public’s right to access information[,] and must be narrowly

construed.”53

A. DOC possessed records that are responsive to the Eligible Voter
Request

The Eligible Voter opinion upheld DOC’s denial of the Eligible Voter Request

on the sole basis that “DOC provided sworn statement attesting that it does not have

the requested records.” 54 Based on the First Cline Affidavit, DOC represented that

it could not generate a list of individuals with a lead charge of a misdemeanor

50
See Vanella on Behalf of Delaware Call v. Duran, 2024 WL 5201305, at *3 (Del. Super. Dec.
23, 2024), appeal dismissed, 339 A.3d 1228 (Del. 2025) (“There are no adversarial proceedings in
the FOIA context, however. In their absence, the statute leaves many questions unanswered.”).
51
Id. at *4.
52
Id.
53
Id. at *3.
54
R. at 133.

11
offense. 55 Notably, the First Cline Affidavit does not aver that DOC cannot create a

list of individuals incarcerated on pre-trial detention. 56

During oral argument, DOC clarified its position regarding the existence of

the requested records. DOC stated it could not produce an accurate list of

incarcerated individuals eligible to vote.57 DOC also could not perform a broad

search of its database for individuals “with a lead charge of misdemeanors.” 58 DOC

represented that, to determine if an individual retained his or her right to vote, DOC

would have to perform “a lot of manual verification to compare charges to

convictions.”59

The flaw in DOC’s position stems from reviewing what ACLU actually

requested through the Eligible Voter Request. 60 ACLU did not request voter

eligibility information in the Eligible Voter Request. Instead, it requested identifying

information on those individuals who are incarcerated on a lead charge of a

55
Id. at 125.
56
See id.
57
Tr. at 12.
58
Id. at 13.
59
Id. at 13.
60
DOC’s Answering Brief contains a heading labeled “DDOC is not the custodian of records
pertaining to voter eligibility[,] and is not obligated under FOIA to create responsive records.” See
Ans. Br. at 7. This framing of ACLU’s request reflects DOC’s belief that the Eligible Voter Request
actually requested information pertaining to voter eligibility, and not the specific records ACLU
requested.
12
misdemeanor or on pretrial detention. While those individuals may be barred from

voting based on their prior criminal history or some other factor, ACLU did not

request that information. ACLU’s motivation for the Eligible Voter Request

undoubtedly stems from its intention to perform outreach to incarcerated individuals

who may be eligible to vote. ACLU’s motivation, however, has no bearing on the

validity or feasibility of its request. DOC’s concerns about providing accurate “voter

eligibility” information are misplaced.

As to DOC’s inability to filter-search its database for those individuals with a

lead charge of a misdemeanor, DOC conceded to the Court that it can search its

database by criminal statutes.61 ACLU argued, therefore, DOC “could search by

statutes that carry misdemeanor incarceration sentences with them and use that to

sort the list.” 62 DOC acknowledged it maintains records that include each

incarcerated individual’s name, SBI number, and dates of incarceration.63

Based on DOC’s representations during oral argument, it possesses records

that are responsive to the Eligible Voter Request. The First Cline Affidavit states

DOC’s database “is not equipped with a designated search function that could

61
Tr. at 20.
62
Id. at 25.
63
Id. at 20-21.

13
produce the above-requested information.” 64 DOC has since clarified that it can

perform a statute-by-statute search to provide responsive records. Although such a

search will prove more cumbersome than the “designated search function”

referenced in the First Cline Affidavit, DOC can produce responsive records. DOC

may not maintain a ready-made list of individuals incarcerated on misdemeanor

charges, but “it would defeat the letter and spirit of FOIA to not use a computer

system in a manner” that can produce the requested records.65 Accordingly, DOC

has not carried its burden to show that it cannot produce the records identified in the

Eligible Voter Request.

B. The Statutory Exemption bars disclosure of the individual
identification records, but not the population records sought by
ACLU

DOC’s next justification for denying the Eligible Voter Request rests on the

Statutory Exemption. DOC asserts “two statutes – 11 Del. C. § 8513(d) and 11 Del.

C. § 4322(a) – bar production of the responsive records.”66 DOC argues those same

statutes prevent its production of responsive records regarding the Elderly

Incarcerated Request. 67

64
R. at 125.
65
Vanella, 2024 WL 5201305, at *9 (citing Shapiro v. United States Dep’t of Just., 507 F. Supp.
3d 283, 333 (D.D.C. 2020)).
66
Ans. Br. at 13.
67
Id. at 18.
14
11 Del. C. § 8513 governs “dissemination of criminal history record

information.” 11 Del. C. § 8513(d) prohibits “dissemination of criminal history

record information by any person or agency other than the [State Bureau of

Identification] or its designee.” 11 Del. C. § 8502(4) defines “criminal history record

information” as “information collected by state or federal criminal justice agencies

on individuals consisting of identifiable descriptions and notations of arrests,

detentions, indictments, informations [sic] or other formal criminal charges and any

disposition arising therefrom, sentencing, correctional supervision[,] and release.”

That statute further specifies that “the names and identification numbers of police,

probation, and parole officers” are not included within the definition of “public

record” under FOIA. 68 11 Del. C. § 8502(4)(c) specifies that “court records of public

judicial proceedings” fall outside the definition of “criminal history record

information.” 11 Del. C. § 8502(4)(d) further instructs that “criminal history record

information” does not include “published court or administrative opinions or public

judicial, administrative[,] or legislative proceedings.”

Similarly, 11 Del. C. § 4322(a) restricts access to “the presentence report, the

preparole [sic] report, the supervision history, and all other case records.”

“Supervision history” and “all other case records” are left undefined. § 4322(a)

68
11 Del. C. § 8502(4).

15
“represents an effort by our General Assembly to balance the need for safety and

security in our state’s prisons against an offender’s ability to obtain information

relevant to his incarceration.”69 § 4322(j) provides that “an individual denied access

to a document under subsection (c) or (d) of this section may seek relief under §

10005 of Title 29.” As § 4322 does not provide a FOIA request as a remedy for

requests covered by § 4322(a), information properly classified as “supervision

history” or “all other case records” are exempted from disclosure under FOIA.

The number of people incarcerated with a lead charge of a misdemeanor, or

pretrial detention, clearly falls outside the definition of “criminal history record

information,” because those figures provide data on a general population – not

specific individuals. Further, because those figures describe a population, they do

not fall under the definition of an individual’s “supervision history” or “all other case

records.” Accordingly, DOC erred by refusing to disclose that information under the

Statutory Exemption.

DOC contends the name, SBI number, and date of incarceration do fall within

those statutorily-protected definitions. In its Answering Brief, DOC asserts the

records cannot be disseminated because they are “criminal history records

information,” without explaining how the records fit into that definition.70 DOC

69
Newsom v. Biden, 2011 WL 835135, at *4 (Del. Ch. Feb. 28, 2011).
70
See Ans. Br. at 14-15.
16
posits providing those records would “require DOC to create records about the

dispositions of incarcerated individual’s charges, sentencing information[,] and

‘correctional supervision.’”71

ACLU counters that “much, if not all, of the information” it requests are

produced during court proceedings open to the public.72 ACLU argues that, if DOC

could not disseminate this information because of statutory prohibitions, those

prohibitions should have also prevented DOC from sharing information with DOE. 73

Given DOC did share similar information with DOE, ACLU alleges DOC cannot

now deny its FOIA request by asserting the Statutory Exemption. 74

Incarcerated individuals’ names and date of incarceration are announced in

open court. 75 Thus, that information falls under the exceptions created by 11 Del. C.

§ 8502(4)(c) and (d), and falls outside the definition of “criminal history records

information.” SBI numbers, however, are not typically a part of the public record

71
Id. at 15.
72
Reply at 11.
73
Tr. at 23.
74
Id. at 24.
75
See DE CONST., Art. 1, § 9 (“All courts shall be open.”).

17
produced by courts. Although SBI numbers are available publicly,76 the exceptions

under § 8502(4) specifically apply to those records contained in court proceedings.

Nevertheless, SBI numbers do not fall within the definition of “criminal

history record information” specified by § 8502(4). 77 SBI numbers are not

“identifiable descriptions or notations of arrests, detentions, indictments,

informations [sic], or other formal criminal charges and any dispositions arising

therefrom, sentencing, correctional supervision, and release.”78 SBI numbers are

identification numbers assigned to individuals by SBI to facilitate the recording of

an individual’s criminal history.79 Accordingly, SBI numbers are not, in and of

themselves, part of an individual’s “criminal history records information,” but

76
During oral argument, both parties acknowledged the public can discover the SBI number of
incarcerated individuals through use of VINElink, an online database. See Tr. at 11.
77
The Elderly Incarcerated Opinion contains the conclusory statement that “inmate names, SBI
numbers, and incarceration dates qualify as identifiable descriptors and information under the
definition of criminal history record information.” R. at 183. Aside from failing to provide any
support for this conclusion, the Elderly Incarcerated Opinion misstates the definition of “criminal
history record information,” which includes “identifiable descriptions and notations of arrests,
detentions, indictments, informations [sic] or other formal criminal charges and any disposition
arising therefrom.” The definition, when read in its entirety, does not include a term consisting
simply of “identifiable descriptions” separated from the terms “arrests, detentions, indictments,
informations [sic] or other formal criminal charges and any disposition arising therefrom.” See 11
Del. C. § 8502(4).
78
11 Del. C. § 8502(4).
79
See 11 Del. C. § 8525 (outlining the process by which a person voluntarily submits for
fingerprinting); see also Code Del. Regs. 3110-8.0 (describing the procedure for the SBI to “furnish
information pertaining to the identification and conviction date for any person to employers or
prospective employers so long as the information is used solely for the purposes of making an
employment decision.”

18
instead are a number used to retrieve that information from SBI. Thus, SBI numbers

cannot be considered “criminal history record information.”

11 Del. C. § 4322(a)(1) poses a tougher hurdle to clear for ACLU’s requests.

The phrase “all other case records” conceivably captures a plethora of information.

Certainly, the name, SBI number, and incarceration date of an individual could fall

within “all other case records,” as that data undoubtedly appears in most, if not all,

case records. ACLU argues § 4322 does not apply here because “the request

contemplates information already within the public domain.” 80 ACLU posits

§4322(a)’s “prohibitions are properly invoked when a request raises safety or

security concerns to those who work or are incarcerated in Delaware’s prisons.”81

As the public can already access the requested information, ACLU submits there are

no safety or security concerns present.82

“If a statute is found to be clear and unambiguous, then the plain meaning of

the statutory language controls.” 83 § 4322(a) does not contain any limiting language

based on the existence of “safety or security concerns.” Moreover, § 4322(j)

specifically identifies which provisions of § 4322 may be challenged through a FOIA

80
Reply at 14.
81
Id. at 13-14.
82
Id. at 14.
83
Judicial Watch, 267 A.3d at 1004 (internally quotations omitted) (quoting Ins. Comm’r of Del.
v. Sun Life Assurance Co. of Can., 21 A.3d 15, 20 (Del. 2011)).
19
request. § 4322(a) does not fall among the provisions identified in § 4322(j). If the

identifying information request by ACLU falls within the scope of “all other case

records,” § 4322(a) bars its dissemination by DOC.

To that point, ACLU directs the Court to Vanella.84 The Vanella court

grappled with what constituted a “personnel file” under 29 Del. C. § 10002(o)(1).85

It determined “whether a record is properly considered part of a personnel file is

resolved by its content rather than mere location, however. To that end, a public

body may not restrict access to records otherwise disclosable under FOIA merely by

placing them in a personnel file.”86 Vanella, in contemplating the scope of an

exemption created specifically by FOIA, narrowly construed that exemption to find

identifying information did not cease to be a public record simply by being placed

in a confidential personnel file.87 The Court finds Vanella’s reasoning persuasive –

and would apply it had DOC maintained its prior position on the Criminal Records

Exemption. The Criminal Records Exemption contains language similar to 29 Del.

C. § 10002(o)(1), but applies to “criminal files and criminal records.” This

84
Tr. at 24.
85
Vanella, 2024 WL 5201305 at *10-11.
86
Id. at *11.
87
Id.

20
exemption bars disclosure of the requested records – independent of the Statutory

Exemption argued here. 88

The restrictions imposed by § 4322(a) present a materially different bar to

disclosure, as they specifically limit what information DOC can disclose regardless

of whether another public agency could disclose the same information. Further, §

4322(a) does not constitute an exemption created specifically for FOIA, such as the

exemption for personnel files discussed in Vanella. The language of § 4322(a) not

only limits the type of information DOC may not disclose, but also prevents

dissemination of information based on how DOC obtained that information. DOC

cannot disclose information, except to several enumerated entities, “obtained in the

discharge of official duty by any member or employee of [DOC].” 89 Unlike an

exemption created specifically by FOIA, which seeks to provide guidance on what

constitutes a public record subject to a FOIA request, § 4322(a) restricts DOC’s

ability to disseminate “all other case records.”

88
Neither the Eligible Voter Opinion nor the Elderly Incarcerated Opinion discussed an exemption
under 29 Del. C. § 10002(o)(4). In its briefing, DOC appeared to abandon this position. See Ans.
Br. at 4 n.2. To the extent DOC does not abandon that position, the Court finds 29 Del. C. §
10002(o)(4) inapplicable to the requested records. As explained in Vanella, information does not
become part of a file – personnel or criminal – based solely upon location. DOC has not provided
any justification as to why the information sought by ACLU should fall under the criminal file
exemption created by FOIA.
89
11 Del. C. § 4322(a).

21
In short, the plain text of § 4322(a) prohibits DOC from releasing information

contained in “all other case records” that DOC obtained through the discharge of its

official duty. Thus, the question becomes not whether the records sought by ACLU

are public records, but whether DOC can disclose those records based on how DOC

obtained them. Based upon DOC’s representation of how it obtained the identifying

information sought by ACLU, that information falls within the definition of “all

other case records” obtained through discharge of DOC’s official duty.

In the Second Cline Affidavit,90 Ms. Cline averred DOC “populates the

offender’s criminal record by exchanging information with the courts, the Delaware

Criminal Justice Information System, and the offender’s interview at intake. This

information is validated and exchanged and either becomes the offender’s criminal

record or enhances the criminal record stored and maintained by [SBI].”91 The

names, incarceration dates, and SBI numbers of individuals processed by DOC are

obtained through DOC employees discharging their official duty and fall within the

bounds of “all other case records.” Accordingly, § 4322(a) prevents DOC from

90
The Court notes that the Eligible Voter Opinion did not discuss the Statutory Exemption.
Further, DOC did not provide the Second Cline Affidavit in response to the Eligible Voter Request.
Nevertheless, the full record on appeal contains the Second Cline Affidavit, and DOC has argued
the Statutory Exemption should apply to the Eligible Voter Request. As the two opinions were
appealed together, the complete record contains the Second Cline Affidavit. That affidavit must
be considered in relation to both opinions.
91
R. at 177.

22
providing that identifying information to ACLU. It does not bar DOC from

providing population-level data, as it did in response to the Elderly Incarcerated

Request.

C. The Litigation Exemption has been rendered moot

At the time of the Eligible Voter request, DOC cited the Litigation Exemption

as a basis to deny ACLU’s request. During oral argument, DOC acknowledged that,

as the window for ACLU to appeal the previously-dismissed litigation had closed,

the Litigation Exemption no longer applies as it pertains to that potential litigation.92

DOC has not identified any other potential litigation on which to base its assertion

of the Litigation Exemption. Thus, for purposes of these requests, the Litigation

Exemption does not apply.

V. Conclusion

DOC incorrectly concluded it did not possess the ability to provide records

responsive to ACLU’s requests. DOC possesses records responsive to the Eligible

Voter Request. Accordingly, its denial of that request is REVERSED in part. DOC

must provide ACLU with the number of individuals incarcerated on the lead charge

of a misdemeanor and the number of individuals incarcerated on pretrial detention.

92
Tr. at 36.

23
DOC correctly reasoned, however, that the individual identification

information sought by ACLU cannot be disclosed under the Statutory Exemption in

relation to 11 Del. C. § 4322(a). DOC’s refusal to provide the individual

identification information sought in the Eligible Voter Request is AFFIRMED. As

DOC has already provided population data in response to the Elderly Incarcerated

Request, its denial of the additional information sought in that request is

AFFIRMED.

IT IS SO ORDERED.

24