March 4, 1997 New Castle County - Civil Division Mr. Bruce L. Hoster 415 East 6th Street Laurel, DE 19956 RE: Freedom of Information Act Complaint Against Town of Laurel Dear Mr. Hoster: Pursuant to 29 Del C. Section 10005(e), the Attorney General's Office makes this written determination whether a violation of the Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), has occurred. By letter dated December 5, 1996, you alleged that the Town of Laurel ("Town") denied your request to inspect and copy public records. Your letter was received by our Office on December 11, 1996, but was mistakenly directed to the Division of Consumer Affairs, instead of the Civil Division which did not receive it until after Christmas. We apologize for any resultant delay in responding to your complaint. By letter dated January 2, 1997, we asked the Acting Town Manager to respond in writing to your complaint within ten days. At the request of the Town's attorney, we granted a twenty-day extension of time, because of the attorney's other work commitments. By letter dated January 21, 1997, we received the Town's response. By letter dated January 24, 1997, we posed several follow-up questions to the Town's attorney in order to clarify the factual record. By letter dated February 3, 1997, we received the Town's response. Since you have made a number of similar FOIA requests to the Town over the last several years, a brief history is in order. By letter dated August 7, 1995, you first asked the Town to produce "[a]ny and all minutes, documents, notes, memoranda, cassette tapes, inter-agency or extra-agency memos or letters, incoming letters of memos, telephone logs or records and electronic recordings which refer to or are in any way connected to Bruce L. Hoster, Delaware Bankruptcy Court Case 91-1168 or 93-01363HSB, the house located at 415 East 6th Street, and/or all consequent communication between all parties including for the town of Laurel." By letter dated September 11, 1995, the Town's attorney responded to your request. Except for "communications between the Town Solicitor and Town officials," the Town agreed to produce "copies of the documentation you have requested, upon payment of the reasonable copying expenses." The Town itemized three documents that it was not producing, claiming that they were "exempt from disclosure as pertaining to pending or potential litigation" (citing 29 Del. C. Section 10002(d)(9)). "The charge for copying such documents is $8.55. Copies of the referenced documents may be obtained at the Laurel Town Hall upon the payment of such fee."
By letter dated September 24, 1995, you requested the same documents as in your letter of August 7, but also requested additional categories of documents: "Any and all minutes, documents, notes, memoranda, cassette tapes, inter-agency or extra-agency memos or letters, incoming letters or memos, telephone logs or records and electronic recordings which refer to or are in any way connected to Bruce L. Hoster, the investigation, arraignment, arrest, and fugitive warrants issued for same concerning any incident, action, ticket, or arrest in absentia or not." Apparently, that letter was never received by the Town, and therefore no response was forthcoming. By letter dated December 5, 1996, you again requested the records pertaining to your bankruptcy that were the subject of your original letter dated August 7, 1995, but also asked to inspect and copy: the Town's water and sewer billing records and tax assessment books; all parking tickets issued by the Laurel Police Department since January 1, 1996; and your criminal file from Alderman's Court and from the Laurel Police Department. By letter dated January 10, 1997, the Town's attorney responded to your latest request to copy and inspect documents. The Town reiterated that the bankruptcy records had previously been made available to you in September 1995. As for the criminal files, the "Laurel Police Department does not have a criminal file on you as an arrestee." The only document the Police Department has relating to you is an arrest card for "the parking violation charge disposed of on December 11, 1996." The Town agreed to make available for your inspection printed computer billing records for water and sewer from 1990-July 1996, and town assessment books. More recent billing records are maintained only in computerized form, and, for security reasons, the Town cannot allow you access to operate the computer. See Att'y Gen Op. No. 94-I011 (Mar. 7, 1994) (FOIA does not require a public body to provide on-line access to a computer database). The Town objected to your request to see copies of parking tickets issued to other persons "on the grounds that such request is overbroad, burdensome and would constitute an invasion of personal privacy, thus being exempt from disclosure pursuant to 29 Del. C. Section 10002(d)(4)." In its letter dated February 3, 1997, the Town's attorney confirmed the following information:
1. The post-July 1996 water and sewer billing records can beprinted out for inspection and copying, on a monthly basis. TheTown has already printed out the records through December 3,1996, and the Town's attorney has asked the Town to print billing records through January 3, 1997. Mr. Hoster can retrieve such records by paying a forty-five cents per page copying charge.
2. The Town of Laurel issued 53 parking tickets during 1996.
3. The Town is willing to produce for inspection and copying the documents in the Laurel Police Department's files relating to Mr. Hoster, including the July 1996 parking summons that was disposed of on December 11, 1996.
4. The Town will make available for your inspection and copying the files maintained in Alderman's Court relating to the two charges that went to trial in the Court of Common Pleas on December 11, 1996. The Town has previously advised you (per its letter dated January 10, 1996) that you "can contact Alderman Sheridan at 875-2855 to request a convenient time to review the files . . . ."
For the foregoing reasons, we determine that the Town of Laurel has not violated the public records provisions of FOIA. The Town has made available to you for inspection and copying most of the public records you requested in your letters dated August 7, 1995, September 24, 1996, and December 5, 1996. The documents the Town has objected to producing are exempt from disclosure under FOIA. Specifically, the three documents identified in Mr. Waehler's letter to you of September 11, 1995 are exempt from disclosure, both because they relate to pending litigation (29 Del. C. Section 10002(d)(9)) and are protected by attorney-client privilege (id. Section 1002(d)(6)).(1) As for parking tickets issued by the Town to individuals other than yourself, we do not agree with the Town that the clerical task of producing those public records would be unduly burdensome, since the Town issued only 53 tickets in 1996. We find, however, that those records are exempt from disclosure under the common law right of privacy, 29 Del. C. Section 10002(d)(6). Law enforcement requires "the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed." Whalen v. Roe, 429 U.S. 589, 605. See Att'y Gen. Op., No. 96-IB33 (Dec. 11, 1996) (names and addresses of business license holders protected by common law right of privacy). Very truly yours, W. Michael Tupman Deputy Attorney General Approved: ___________________ Michael J. Rich State Solicitor cc: The Honorable M. Jane Brady Attorney General Keith R. Brady Chief Deputy Attorney General James F. Waehler, Esquire Elizabeth A. Bacon Opinion Coordinator 1. Those documents are: a fax from William S. Hitch to John E. Messick, Esquire, dated June 15, 1992, relating to the Hoster bankruptcy proceedings; letter from Donna K. Adkins of the Town of Laurel to Tunnel & Raysor, dated June 19, 1992, relating to outstanding amounts due for water, sewer, trash, and real estate taxes; and letter from John E. Messick, Esquire to William S. Hitch, dated February 25, 1993, relating to the Hoster bankruptcy proceedings and sale of properties for tax delinquency.
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