AG: DHSS Says Vendor Destroyed Previous Covid Reports, FOIA Request Denied

A Freedom of Information Request (FOIA) decision by the Delaware Department of Justice (AG) indicates that some records having to do with Covid 19 were destroyed.

Shortly after the State of Delaware imposed a mask mandate on school children in August the Delaware Health and Social Services (DHSS) received a request for information. The request was regarding the COVID case count by the school district for each week between 8/15/20 and 8/25/21. The request noted that the data was removed from the public website and no summer data was presented for summer school staff and students.

DHSS denied the request on September 3, 2021, stating that “DHSS is unable to produce the records you requested under FOIA as the information is not maintained by DHSS in a readily accessible format that can be accessed without writing a program or creating a new document.” Citing to Attorney General Opinion precedent, DHSS stated that “FOIA does not require an agency to create a document or program that does not already exist.” DHSS went on to suggest that a may data request could be made to the Division of Public Health (“DPH”) for the historical data and included a reference to a website.

Following the initial response, the petitioner asserted that denial by DHSS was improper.  In their response to the appeal of the FOIA denial the AG’s office said ” You contend that the cited opinion “actually referred to a situation where the person submitting the FOIA had received the information in hard copy and [also] wanted the information in electronic form,” but unlike this opinion in which hard copies were provided, you were denied any records. In particular, you note that the opinion states that FOIA does not make any distinction between records maintained in manual and electronic storage systems and that the chosen type of storage system does not diminish a public body’s FOIA obligations. You state you prefer to receive the records in “hard form” but would take them in any format. You argue that you have not located any information suggesting that “FOIA precludes an agency from creating a document – they might charge [you] for it, but they still create it.” In addition, you question how DHSS can deny your request for these records, if they referred you elsewhere for the same records. In other words, you want to know why DHSS did not obtain the records you requested from this source in response to your FOIA request.”

The AG’s office continued “DHSS, through its legal counsel, replied to the Petition on September 24, 2021 (“Response”). DHSS notes are you are correct that the COVID case counts for in-person learning was previously available online broken down by week and district. DHSS explains that this information is now back online, but the data you are seeking is historical data that is no longer populating the DHSS website. Instead, DHSS notes that DPH contracts with an outside vendor who operates the coronavirus website known as “My Healthy Community.” DHSS asserts it checked with the vendor and confirmed that the vendor has destroyed any previous reports which would have been responsive to your request. DHSS states that the vendor uses the data from DPH’s system which tracks every COVID test and case in Delaware; this vendor, not DPH, creates the reports that appear in this website. In order to fulfill your request for summer school data, DHSS asserts that “the State would be required to dig through months of COVID cases to break out student and teacher cases, create a new report, and submit that to [you].” DHSS explains that summer school data was never on the website; with such low numbers of individuals in summer school, the data could reasonably lead to identification. As many citizens have requested historical data, DPH plans to work with its vendor to add historical data back to the website. In addition, DHSS notes that you are welcome to submit a request for the raw data; those requests are evaluated by the Human Subjects Review Board in order to ensure that the data, and the subjects of the data, are private and secure. Citing precedent, DHSS claims that it has no obligation under FOIA to create a new record, and fulfilling your request for school data would require DPH or its vendor to “create a new record from existing data sets” and fulfilling the request for summer school data would require DPH “to comb through historical case data, analyze those cases to provide only de-identified data and then create a new record.”

“Under FOIA, a public body carries the burden of proof to justify denial of a request for records. The representations of the public body’s legal counsel may satisfy this burden. FOIA requires a public body to provide access to its existing public records, but it does not require a public body to create a new record in order to fulfill a records request.” the AG’s office concluded

“Your request makes a specific request for COVID case count by district for each week for a timeframe encompassing the 2020-21 school year and 2021 summer school, including the number of staff and number of students each week. Although information about the current school year is now available online, DHSS’s counsel represents that the requested reports for the 2020-21 school year reports no longer exist and to recreate them would require DHSS to create a new record from public health case data and that creating new reports about summer school would require DHSS to “comb through historical case data” to break out student and teacher cases, de-identify the data, and create a new record. Based on these representations, we find no violation of FOIA. Your request did not seek the raw data, but we note that DHSS has offered you the opportunity to submit a request for raw data through its Human Subjects Review Board. Furthermore, in the interest of public transparency, we encourage DHSS to follow its plan to make historical data available on its website in the future.”

The AG’s office said it was their determination that DHSS did not violate FOIA.

Image Credits: DHSS

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