Summer 2003

A Lengthy Legal Battle to Gain Access to Public Documents

A Delaware newspaper tries to obtain data about the state’s criminal justice system.

By Deborah Henley

By now, there have been years of repeated Freedom of Information Act requests and lawsuits, appeals, filings, pleadings, responses, hearings, conferences, negotiations, affidavits, experts and many thousands of dollars paid to attorneys. A Delaware judge, in his most recent finding, used the words “difficult and protracted” to describe the lengthy fight between The News Journal and state agencies of the Delaware Criminal Justice Information System (DELJIS) over our reporters gaining access to the state’s criminal justice database.

For those of us in the newsroom, five years after our first Freedom of Information Act request (FOIA) in this case, it feels more like the movie “Groundhog Day.” Every day is a repeat. Each new document labeled The News Journal v. DELJIS or vice versa seems to bring a split decision by raising as many new questions as providing answers. This fight has become a never-ending free-for-all, with the state and its largest newspaper seeming to argue the same basic issues again and again.

We are seeking computer records about those who have been arrested or charged with a crime in Delaware. Reporters at The News Journal want to analyze a 10-year “snapshot” of data from state agencies including police, prosecutors, courts and corrections. The reason we want to do this is so the newspaper can assess broad trends in the state’s criminal justice. Are there trends in sentencing? If so, what do they show? Does gender or race make a difference in how cases are handled? Are cases being handled promptly? How do past convictions affect sentencing? How often are charges dropped or pleaded down to lesser crimes? How does sentencing affect the recidivism rate?

The Legal Issues

We believe that with information from the state’s database, The News Journal will be able to better tell newspaper readers how criminal justice is administered in Delaware. Yet, five years after the newspaper’s most recent request for DELJIS information, the fight continues. The legal issue: What is the proper balance between protecting the personal privacy of individuals whose criminal justice record is compiled by the state and providing for public accountability by sharing information necessary to assess the overall performance of public officials and government?

The state’s FOIA prevents the release of “criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy.” But The News Journal has not requested the names of defendants or any means of identifying individuals. The newspaper has consistently signed or offered to sign a “user’s agreement” for information from the database, pledging to ensure confidentiality. Ironically, most of the information we requested is already public, at police stations and courthouses across the state. The database is a long-term compilation of information that would be nearly impossible to collect every day.

In January, a Superior Court judge told the state to pay The News Journal $74,000 in attorney fees and costs incurred since the newspaper was forced back to court by the attorney general last fall. After initially approving an amended FOIA request, DELJIS sought judgment on whether the unnamed individuals in the database information requested by The News Journal could be identified from the information provided and whether the identification numbers of police officers should be released. This judge affirmed the newspaper’s right to have fields of related information linked so that repeat offenders could be recognized and an unnamed individual could be followed as he or she moved through the criminal justice system.

But, from our perspective, there were also troubling notes in the judge’s decision. The judge denied the newspaper access to information about cases that did not result in conviction as well as geographic information such as the location of the crime and county of residence. DELJIS had previously agreed to release this information, so these were not considered issues that the court was being asked to decide. The judge also decided that the newspaper could be treated differently from individuals. Because it is routine for newspapers to file lawsuits to gain information for investigative reporting, he wrote, the “incentive structure” for awarding court costs—intended so the public is not dissuaded from litigating for information—should be different for a newspaper than it is for an individual. Using that reasoning, he awarded about half what The News Journal had sought to recover for its legal costs.

This differing treatment of journalists can be found in other state agencies. Last year, another state agency raised its fees for providing copies of documents released to the newspaper under FOIA requests. Whereas it had charged the same fee for us as it did for members of the public, now a newspaper request is given the same fee rate as a business or commercial request.

What was gratifying, however, was that the court finally showed support for FOIA and the newspaper’s role as a watchdog for Delaware citizens. In agreeing that important parts of the database should be released so that the newspaper can begin meaningful analysis of trends in the justice system, the court affirmed that the newspaper serves an important role as watchdog for the public.

Our fight is not over. We’re appealing the Superior Court’s rulings that denied reargument of issues including information on cases that did not result in a conviction. It is crucial to be able to analyze why cases were dropped and at what point in the judicial system that happened, whether at the point of a police investigation, a prosecutor’s case, or events inside the courtroom. Additionally, we will appeal the rulings on geographic data, identification of police officers, and the amount of the award. The opening brief was filed March 31, 2003, and DELJIS representatives immediately filed a notice to cross-appeal.

Lessons About Obtaining Access to Government Data

We’ve examined our experience in the DELJIS case and found some practical advice to share with other journalists confronting similar challenges in trying to obtain access to government data. Here are some observations and suggestions:

Financial and management support are critical: Newspapers of all sizes—community, metropolitan or national—must be willing to spend the money necessary in the fight to keep public records open and provide reporters with the tools to examine them. They cannot be deterred in the face of challenges such as the current recession and increasing public concerns over privacy. This fight must be waged for the larger public good.

Support and involvement from the newspaper’s leadership is crucial. The News Journal, under our publisher and his executive editors, has steadfastly encouraged watchdog journalism. But it is essential that reporters, editors and management at the newspaper constantly communicate among colleagues in the newspaper and beyond that watchdog journalism is a sound investment.

Given technological advances—for example, in computer-assisted reporting (CAR)—important work can and should be done in watchdog journalism. CAR increases significantly the depth and breadth of reporting. In some respects, CAR is an equalizer, allowing us to explore the numbers and check the accountability of public institutions. It enables us to advance our stories from the anecdotal to a broad, substantiated analysis. Computer hardware and software are affordable, as is the training offered throughout the year at regional workshops, where journalists learn from one another.

Having this capability puts metro and community newspapers on a more equal footing with the government agencies they cover. As computers assumed more tasks in government offices, the accessibility of large amounts of information on government operations increased dramatically. When such information is available (as it should be to the public that pays for it to exist), a newspaper can analyze data just as any government agency can and determine public accountability. All of this can help to bring reporting to new and important levels.

The News Journal began in the early 1990’s to request electronic copies of 10 years of records including felony, misdemeanor and traffic cases from the DELJIS database. In 1993 and 1995, nearly 100 fields of information were released to the newspaper, but turnover in newsroom staff who had the expertise to work with databases and our discovery of limitations of the data we’d requested prevented us from reporting from the original records provided. In 1997, the newspaper expanded its request for information to obtain a more accurate picture of state criminal justice operations.

Be prepared to react to change: Even though laws are unlikely to change, everything else can, including judges, attorneys and public officials.

Since 1997, DELJIS has attacked our requests for release of data on several fronts. This started to happen when the newspaper broadened its request for the number of fields of data from nearly 100 to about 300, again in non-identifiable form and with the signing of a user’s agreement. In meeting our first two requests, DELJIS and the newspaper agreed that recurring surrogate or fictional identifying numbers should replace any numbers used by the state to identify individuals. This, both sides agreed, would adequately respond to privacy concerns while giving our reporters means to track the cases of repeat offenders. Our ability to analyze the data would be gutted if reporters could not follow an individual throughout the court system for all the crimes for which that person was charged.

In 1993 and 1995, the then-attorney general accepted the terms of these FOIA requests. But in 1997, a new attorney general denied our FOIA request, citing other parts of the state code relating to the release of criminal history record information. Then, in the fall of 2000, the newspaper negotiated a revised request of about 200 fields of information including only the identifying characteristics of age, gender, race and county of residence. The DELJIS board initially approved the amended request, but a month later the board reversed itself after being urged by the attorney general to go back to court to challenge the linking of data.

Journalists need to become actively involved in the legal case: Journalists need to join with lawyers in preparing and arguing the legal case. Reporters and editors who do database work have the experience and the research skills needed to strengthen the case. Respected outside journalists can help, too. During a recent hearing, we had staffers in the RELATED ARTICLE
"The Arguments: The News Journal v. DELJIS"
courtroom checking the state’s assertions and researching questions that arose during testimony. Reporters and editors also described to the court the process we use when we obtain legal information about a particular defendant or prisoner, and reporters helped to research work done by other organizations that had been granted access to DELJIS data.

There was constant communication between our lawyer and our staffers. We also brought in an expert witness, a veteran database editor from another statewide newspaper, to answer the state’s expert, a data privacy expert from Carnegie Mellon University. Our staffers and expert witness also helped with the biggest challenge in such cases—the need to clearly explain the finer points of database journalism. Enhancing the understanding of lawyers and judges was crucial. It is important to tout your newspaper’s record of strong watchdog work serving the public interest and to highlight reporting that has similarities to the case at hand. It can also help to tell the story of such reporting by other newspapers and in other states.

News Journal reporters also testified about the newspaper’s responsible handling of database information from public agencies and the important stories that resulted. Our reporters shared examples of database work in which they reviewed property records to assess whether tax assessments are fair and examined state spending to determine whether government makes the most efficient use of tax dollars. The newspaper also annually analyzes and reports on state test score data provided by the Department of Education. Those records include demographic and descriptive information about individual students, but each name is redacted and replaced with a surrogate, scrambled identification number. The News Journal voluntarily withholds economic demographic data related to a group of fewer than 15 students to prevent the public from being able to identify those individuals.

And, as we pointed out in testimony, the Department of Education does not charge the newspaper for the data because it considers this reporting to be a public service. Members of the public receive information about how schools perform, how demographic groups are faring, and how the same groups of students are progressing over time. These are valuable measurements that people can use in assessing new statewide testing that determines grade level advancement and graduation. We also found that Georgia has used the same technique of surrogate identifiers to provide criminal records of minors to a state newspaper for database analysis. And this we told the court.

One fact we learned from testimony was that there are 1.34 million individuals in the 10-year “snapshot” being requested. The newspaper is hindered in its ability to analyze and counter the state’s assertion because it has no way of knowing how many crimes the 1.34 million individuals in the database have been charged with, nor whether they were arrested within the 10 years included in this “snapshot.” And we don’t yet know how many traffic offenses, misdemeanors or felony arrests there are, nor how many are linked to any one individual.

Keep records of database work updated: Our FOIA requests and challenges unfolded over almost 10 years, so we sometimes found ourselves repeating research and review of documents because of staff turnover and the passage of time. Be sure to keep records easily accessible and leave memos to your successors about what you’ve found and done.

Take the fight to your readers: Assign a reporter not involved in the case to cover this story. Give thought to how to play the story in the newspaper. Involve editors who are not involved with the case and empower them to edit these stories with fairness, context and balance. Give interviews when appropriate to help explain the newspaper’s position. Be sure your own reporters press those on the other side to fully represent their concerns.

At The News Journal, one of our court reporters has covered developments in the case. Our attorney and I and previous executive editors have presented the newspaper’s views in interviews for these stories. Stories are played on the front page or the local section, depending on their news value. Editors not directly involved in the case help make this decision and edit the story.

This debate is a crucial one for the public to understand. As we have argued in court, “It would seem that what little privacy issue could be argued to exist, it is so remote as to be far outweighed by the public’s interest in analyzing the performance of the criminal justice system.”

Readers expect newspapers to help watch over the elected leaders who govern them and the officials who run government acting on their behalf. And those newspapers doing so responsibly and regularly have established a credibility that enhances the value of their publication.

Deborah Henley is executive editor of The (Delaware) News Journal. Henley also has worked at New York Newsday, The New York Times, and The Courier-Journal in Louisville. News Journal colleagues Merritt Wallick, Jean Buchanan and Robert Long, and the newspaper’s attorney, Richard Elliott, Jr. of Richards, Layton & Finger, contributed to this report.


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