While some state agencies embrace open data, others are less inclined.
While some state agencies have embraced open data as a concept and have begun to share databases, others, including the Delaware State Police, Lottery Commission and MVA, have been less forthright in opening their data to public inspection.
In November the Dover Post requested state police accident data. The request asked for information on accidents that is routinely included in police press releases and compiled in an annual traffic statistical report from the state police Information and Analysis Center. That report, which is available online, spans 100 pages and includes everything from weather conditions at the time of accidents to contributing factors, seat belt use, age of drivers and more.
In response to the FOIA request, the state’s Department of Homeland Security said there is no database of the information requested and, even if there was, the agency is “prohibited” from releasing it, even though the information is routinely included in press releases about individual accidents that the agency sends out via email, posts on its website and posts on its Facebook page.
“While DSHS is expressly prohibited from disclosing the detailed information you seek, even if DSHS could release this information, it would require that we review each and every accident report submitted in connection with a fatal accident and gather the specific information you have requested, which DSHS is not required to do under FOIA,” wrote Wendy Hudson of the Department of Safety and Homeland Security.
Redacting non-releasable information is common for most agencies that respond to information requests, yet the state police and other state agencies that denied FOIA requests say redacting private data fields from an established database constitutes creating a new public record, which is something they don’t have to do under the law.
The state Lottery Commission website highlights vendors each month who sold the most lottery tickets, but in denying the Dover Post’s Freedom of Information Act request for ticket sales by vendor, the agency said that it does not maintain information on which vendors sell the most tickets and, even if it did, it would require putting together “tens of thousands of pages of records, from which the lottery would have to manually extract the data into a summary document.”
The duplicity of highlighting its best vendors on its website while maintaining it does not have a list of its best vendors was not lost on the state Department of Justice’s office which, after the Dover Post appealed, asked the commission for clarification.
In multiple follow-ups, the Lottery Commission maintained that it did not have the records, but the agency also cited state statutes that, it says, allows them to deny the request based on the premise that revealing the data would harm the businesses that sell lottery tickets.
“This information about licensed retailers’ sales, revenues and bonus awards is so sensitive that a disclosure to even its own employees would harm the company’s competitive advantage in the market,” wrote Deputy Attorney General Robert Willard in arguing against disclosure.
Ultimately, however, the issue came down to one of not privacy, but state revenue.
“If the Lottery must disclose such information, it will most likely lose such corporate retailers in the future and hence lose future sources of revenue for the state of Delaware,” Willard wrote.
The Department of Justice has not yet ruled on the appeal.
In response to a January FOIA request asking for a database of registered vehicles by year, make and model, the state Department of Motor Vehicles responded that it did not have that information available.
“Retrieving the information you requested would require coding a special query to extract the requested information, which is not required under FOIA,” wrote Donna Miller with the state Department of Transportation.
Scott Vien, director of the DMV, followed up the denial by asking for more details on the data requested.
“There’s no big deal about sharing the information,” he said. “We don’t want to hide the information that we have. If it is releasable it is releasable.”
Like other agencies, however, he said retrieving the data would necessitate creating a new query, and that constituted creating a new record, which the agency was not obligated to do.
Denials are discouraging
Kevin Goldberg, legal counsel for the American Society of News Editors, said denials of this type are not unusual.
“That is kind of a game,” he said. “Intentionally or unintentionally agencies can throw up many roadblocks from the very start.”
ASNE is a nonprofit professional organization founded in 1922 that promotes fair, principled journalism, defends and protects First Amendment rights, and fights for freedom of information and open government.
When agencies threaten to charge high fees for records, withhold information or cite questionable exemptions in denying a request, the people seeking the information can be discouraged.
“Each takes its toll and chips away at your will to fight this,” he said.
Persistence, however, can pay off, and Goldberg said it is important to keep lines of communication with state agencies open.
“Sometimes it is not intentional,” he said. “Sometimes it is a misunderstanding or an honest lack of a meeting of the minds. If you can understand what they want and they can understand what you want, that could help in getting what you want.”
Carl Kanefsky, Public Information Officer, Delaware Department of Justice wrote in an email that the department couldn’t comment on agency denials of records requests, but said DOJ provides a manual and FOIA training to public bodies that is based on the law and previous court cases, and that information is available online to the public as well.
Related: Web portal opens Delaware databases.