New Castle County - Civil
Mr. Thomas J. Cook
State Election Commissioner
32 W. Loockerman Street, Suite M-101
Dover, DE 19901 D210A
Re: Felony Conviction Information
Dear Mr. Cook:
By letter dated November 29, 1999, you asked for an opinion of the Attorney General whether "the Department of Elections, under the 'Freedom of Information Act,' can release" felony conviction information which the Department receives from the Superior Court to "cross check on the voter registration system." Your letter was prompted by a request from Samuel L. Guy, Esquire for "a copy of the database of the list of felons used by the State of Delaware Elections Commissioner . . . to check against when a person attempts to register to vote."
You have provided us with a sample computer print-out of the felony conviction data you receive from the Superior Court. You have also informed us that your office "does not generate this data, but simply transcribes it into a database for use with our voter registration system."
The Delaware Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), provides that "[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." 29 Del. C. §10003(a). The Act defines "public record" broadly to include "information of any kind owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected by any public body, relating in any way to public business, or in any way of the public interest, or in any way related to public purposes, regardless of the form or characteristic by which such information is stored, recorded or reproduced." 29 Del. C. § 10002(d).(1)
Beyond the application of FOIA, 15 Del. C. § 1305 requires the respective county Departments of Elections, in addition to maintaining the voter registration record, to assure that "[t]he registration records shall, during normal business hours of each department, be open to the inspection of anyone desiring to examine the same, without fee or reward. Anyone desiring to do so may be permitted to make copies of partial copies thereof."
Under 15 Del. C. § 1703, the Prothonotary shall,
[w]hen a person is convicted of a crime
deemed by law a felony, notify immediately the department of the county
in which the person is a resident and the State Election Commissioner.
Such notifications shall include a full, complete and accurate copy of
the record of the name, present residence and last previous residence,
date of birth and Social Security number if available of each individual
of voting age who has been convicted of a felony. (emphasis added)
Since the Prothonotary is required to transmit the foregoing information to the office of the Election Commissioner and the appropriate county Department of Elections, we need not consider or discuss the applicability of FOIA to the judiciary. These independent statutory provisions clearly require the official public record to be maintained in the county Department of Election's office and available for public view.
One might question whether the information which the Prothonotary is required to transmit to the Commissioner and the county Department of Elections is a criminal record and therefore an exclusion from FOIA under 29 Del. C. § 10002(d)(4). To the extent the specific information required to be transmitted by the Prothonotary 15 Del. C. §§ 1305 and 1703 to the Commissioner and Boards is criminal record information, that information is part of the Superior Court's public record and that specific information remains public once it is transmitted in accordance with the law.
Nevertheless, FOIA does protect information which, if disclosed, would constitute an invasion of person privacy. 29 Del. C. § 10002(d)(1). The information required by § 1703 consists of an alphabetized list of names with home addresses, followed by date of birth, social security number, date of sentence, charge, disposition date, disposition, and case number. The question then becomes whether disclosure of any of this information "would constitute an invasion of personal privacy" under state or federal law. Of the information required to be transmitted by the Prothonotary to the Commissioner and county Department of Elections, the only information that, if disclosed, would constitute an invasion of personal privacy is the person's social security number.
While there are specific prohibitions against the disclosure of tax, criminal and drivers' records, Delaware has no significant line of cases addressing whether the release of a person's social security number constitutes an invasion of privacy that would be prohibited under FOIA. Accordingly, we look to other jurisdictions for guidance. The federal FOIA statute, 5 U.S.C. §552(b), exempts from disclosure information specifically exempted by other statutes as well as personnel, medical and similar files "the disclosure of which would constitute a clearly unwarranted invasion of privacy." Id. The federal courts have consistently ruled that disclosure of a person's address and/or social security number is unwarranted in circumstances where that information is not germane to the request. See generally, Sheet Metal Workers Inter. Ass'n, Local Union No. 19 v. U.S. Dept. of Veterans Affairs, 135 F.3d 891 (3rd Cir. 1993); Oliva v. U.S., 756 F.Supp 105 (E.D. N.Y. 1991); Swisher v. Dept.of the Air Force, 495 F.Supp. 337 (W.D. Mo. 1980). While disclosure of a person's address may be considered an invasion of personal privacy under certain circumstances, the public availability of a voter's address is essential to the right of a citizen to challenge a voter's qualifications under Delaware law. 15 Del. C. § 4941. Delaware law does provide a measure of privacy for individual voters' records by permitting individual voters to petition the Superior Court to have his or her residential address be kept confidential upon a showing of legitimate need and lawful purpose. 15 Del. C. § 1303.
In conclusion, it is our opinion that a
citizen seeking access to the felony conviction information maintained
in the Commissioner's office or any county Department of Elections is entitled
to see all of the record except for the individual's social security number
and subject to any other confidentiality order pursuant to Delaware law.
That information is not necessary for a citizen to examine the Commissioner's
or county's Department of Elections' use of the felony conviction data
from the Superior Court. The social security number should be redacted
before disclosure of the other information in this database is provided
to the requestor.
Very truly yours,
Michael J. Rich
cc: The Honorable M. Jane Brady
Samuel L. Guy, Esquire
Mr. Phillip G. Johnson
1. Note, however, that there are fourteen categories of documents that are exempt from the public record definition. See 29 Del. C. § 10002(d)(1-14).
BACK TO INDEX