Court says broad statistical response would invade someone’s privacy

From the Fall 2000 issue of The News Media & The Law, page 34.

The Delaware Supreme Court on Sept. 14 affirmed a Superior Court ruling denying The (Wilmington) News Journal access to records held by a state agency that compiles crime statistics. The court reasoned that the sheer size of the request would necessarily invade someone’s privacy, but did not give any guidance to the newspaper of how to better tailor its request in the future.

When the newspaper requested records from the Delaware Justice Information System, an agency that compiles crime statistics, the newspaper expected nearly automatic access. Two prior requests in 1993 and 1996 had been granted — with conditions, but the newspaper had agreed to them. The third time, however, the newspaper’s request was denied.

In its previous requests, the newspaper had agreed to terms set forth by the criminal statistics agency to use the information for the limited purpose of statistical research. This arrangement assuaged the agency’s concern that the newspaper could reconstruct the anonymous data into an identifiable profile of a convicted person.

The newspaper expected the same procedure when in September 1997 reporter Robert Long asked for statistical information on every criminal conviction for the preceding 25 years. He asked the agency to sort the number of convictions into three dozen categories, ranging from the general — the charged offense and sentence issued — to the specific — age, gender and race of the defendant — to the unique — whether the defendant participated in special prison programs.

The agency told the newspaper the state police now handled requests for criminal history information. When asked, the state police responded with a letter instructing the newspaper it could obtain only conviction records of specifically identified individuals.

In 1999, the newspaper sued the criminal statistics agency for the information in the state Superior Court in New Castle. The question before the court was whether the data requested satisfied a state statutory exemption from the state open records law for records containing private information. According to the statute, the agency holding the records determines the sensitivity of the information.

When the legislature created the Delaware Justice Information System it also drafted a corresponding set of laws governing the dissemination of its records. These laws explicitly mention that the Delaware Justice Information System can give the media access to conviction data of identified individuals at its discretion. However, in another section of these laws, the legislature gave the Delaware Justice Information System discretion to give criminal history information of identified people to individuals or organizations for the “purpose of research, evaluative or statistical activities.” The statute granting access for research purposes did not delineate what kinds of researchers would be entitled to see the information.

The superior court denied the newspaper’s request because of its wide scope. Release of the requested data — 300 fields of information — presumptively invaded someone’s privacy, the court said. As a result, the classification by the agency that the information was private satisfied the exception to the open records law.

“The very troubling part of this opinion is that the court said that we were entitled to some of the information, but that the request was too broad and so we couldn’t get any of it,” said Richard Elliot Jr., who represented The News Journal. “And they didn’t tell us what part of the request was public and what wasn’t.”

Additionally, the court determined the newspaper was not entitled to receive criminal history information for “research, evaluative or statistical activities” because the legislature did not expressly include the media as permitted recipients in the statute. Instead, the court said, the only avenue for the media to garner access to records of the Delaware Criminal Justice Information was under the law permitting the release of conviction data. Because the newspaper request was for much more than just conviction data, the court indicated that the entire request was rightfully denied.

On appeal to the state supreme court, The News Journal emphasized that the information its reporters sought did not identify any specific person and so no privacy interest was at stake. Additionally, the newspaper argued that it should be considered a research agency under the law that allowed the Delaware Justice Information System to give out criminal history records. The newspaper argued that if it was read to exclude media, then the law would violate the newspaper’s constitutional right to equal protection.

In its reply brief, the Delaware Justice Information System argued that the superior court ruling should be upheld. The agency claimed that privacy interests would be violated by the release of the records and argued that the newspaper could only receive conviction data — not criminal history data — because it was not a “research” entity. In response to the newspaper’s equal protection claim, the agency argued that the law was constitutional because it was rationally related to a legitimate government interest of protecting individual privacy.

In mid-September, the state supreme court issued a brief opinion affirming the lower court’s analysis in the denial.

Elliot said the opinion gives no guidance on what the newspaper can and cannot get. He said the newspaper would “make a narrower request and see what happens.”